EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22495/93
Esref Yasa
against
Turkey
REPORT OF THE COMMISSION
(adopted on 8 April 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-24). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-20) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 21-24). . . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 25-78) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 25-48). . . . . . . . . . . . . . . . . . .4
B. The evidence before the Commission
(paras. 49-61). . . . . . . . . . . . . . . . . . .7
C. Relevant domestic law and practice
(paras. 62-78). . . . . . . . . . . . . . . . . . 10
III. OPINION OF THE COMMISSION
(paras. 79-137). . . . . . . . . . . . . . . . . . . . 13
A. Complaints declared admissible
(para. 79). . . . . . . . . . . . . . . . . . . . 13
B. Points at issue
(para. 80). . . . . . . . . . . . . . . . . . . . 13
C. Approach to the evidence
(paras. 81-83). . . . . . . . . . . . . . . . . . 13
D. As regards the complaints relating to Hasim Yasa
(paras. 84-88). . . . . . . . . . . . . . . . . . 14
E. As regards Article 2 of the Convention
(paras. 89-107) . . . . . . . . . . . . . . . . . 15
CONCLUSION
(para. 108) . . . . . . . . . . . . . . . . . . . 19
F. As regards Article 3 of the Convention
(paras. 109-112). . . . . . . . . . . . . . . . . 19
CONCLUSION
(para. 113) . . . . . . . . . . . . . . . . . . . 20
TABLE OF CONTENTS
Page
G. As regards Article 10 of the Convention
(paras. 114-117). . . . . . . . . . . . . . . . . 20
CONCLUSION
(para. 118) . . . . . . . . . . . . . . . . . . . 21
H. As regards Articles 6 para. 1 and 13 of the Convention
(paras. 119-122). . . . . . . . . . . . . . . . . 21
CONCLUSIONS
(paras. 123-124). . . . . . . . . . . . . . . . . 22
I. As regards Articles 14 and 18 of the Convention
(paras. 125-128). . . . . . . . . . . . . . . . . 22
CONCLUSIONS
(paras. 129-130). . . . . . . . . . . . . . . . . 22
J. Recapitulation
(paras. 131-137). . . . . . . . . . . . . . . . . 23
PARTLY DISSENTING OPINION OF MR. A.S. GÖZÜBÜYÜK
JOINED BY MR. F. MARTINEZ . . . . . . . . . . . . . . . . . 24
PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES . . . . . . . 25
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 26
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Turkish citizen born in 1962, who lives in
Diyarbakir. He complains on his own behalf and on behalf of his uncle,
Hasim Yasa, who was a Turkish citizen born in 1956 and resident in
Diyarbakir until he was shot dead on 14 June 1993. The applicant is
represented before the Commission by Professor K. Boyle and
Ms. F. Hampson, both teachers at the University of Essex, England.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. B. Çaglar.
4. The applicant alleges that he was seriously injured and his uncle
killed in attacks by agents of the State as part of a campaign against
persons involved in the distribution of certain newspapers, that he was
ill-treated by the police while in detention and that he has no access
to court or effective remedy in respect of these matters. He invokes
Articles 2, 3, 10, 6, 13, 14 and 18 of the Convention.
B. The proceedings
5. The application was introduced on 12 July 1993 and registered on
20 August 1993.
6. On 11 October 1993, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 22 April 1994,
after two extensions in the time-limit fixed for this purpose. The
applicant replied on 15 June 1994.
8. On 30 August 1994, the Commission requested the Government to
submit further information.
9. On 24 October 1994, the Government provided further information
after an extension in the time-limit. The applicant submitted comments
on this information on 20 December 1994.
10. On 3 April 1995, the Commission declared the application partly
admissible, partly inadmissible.
11. The text of the Commission's decision on admissibility was sent
to the parties on 10 April 1995 and they were invited to submit such
further information or observations on the merits as they wished. They
were also invited to indicate the oral evidence they might wish to put
before delegates.
12. On 18 April 1995, the Government submitted supplementary comments
on the application. On 24 April 1995, the applicant submitted
supplementary information.
13. Following an extension in the time-limit for the submission of
observations on the merits, the Government provided observations on
17 July 1995. The applicant submitted comments on these observations
on 7 September 1995.
14. On 9 September 1995, the Commission examined the state of
proceedings and decided to request further written observations on the
merits in relation to specified questions, fixing a time-limit of
1 November 1995. The applicant's response was submitted on
3 November 1995. The Government were reminded by letter of
25 January 1996 that they had not replied to the Commission's request
and informed that the Commission would shortly examine the application.
A new time-limit of 22 February 1996 was fixed for the Government's
response. The Government's observations were received on
10 April 1996.
15. On 18 May 1996, the Commission considered the state of
proceedings. On its instructions, the Secretariat consulted the parties
to verify that neither party considered that there was essential
evidence that should be taken orally before the Commission's delegates.
The parties were requested to respond by 17 June 1996. An extension was
granted at the request of the Government until 5 July 1996.
16. By letter dated 14 June, the applicant replied that there was no
essential evidence which he wished heard by Commission delegates.
17. By letter dated 2 July 1996, the Government informed the
Secretariat that they had no objection to the hearing of witnesses. By
letter dated 5 July 1996, the Secretariat replied that the Commission
had not proposed taking evidence but that the Government should inform
the Commission by 2 August 1996 if there were any witnesses which the
Government considered should be heard. No further response has been
received from the Government.
18. On 19 October 1996, the Commission examined the state of
proceedings in the application.
19. On 8 April 1997, the Commission decided that there was no basis
on which to apply Article 29 of the Convention.
20. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
21. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
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
22. The text of this Report was adopted on 8 April 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
23. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
24. The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. Concerning the incidents involving the applicant and his uncle
a. Facts as presented by the applicant
25. Until recently the applicant carried out the business of a
newsagent or newspaper vendor from a shop or a kiosk in the town of
Diyarbakir. From October 1992 his life has been threatened by the
police because he sold certain newspapers, especially Özgür Gündem and
Özgür Halk.
26. In November 1992 about a week before his shop was set on fire and
burned down, he was visited by two police officers from the Diyarbakir
Security Headquarters. One of them was Commissioner Kemal Fidan. The
applicant did not know the other officer's name. These policemen told
him that they would burn down his shop.
27. In the early hours of 15 November 1992 his shop was set on fire
and destroyed. He calculates the damages as being 70 000 000 Turkish
Liras.
28. After this incident, the other newsagents decided to make a
protest strike and on a date unspecified in November 1992 refused to
sell anything including all newspapers. The police forced the sellers
to accept newspapers and sell them but the applicant refused. As a
result he was taken to the police station where he was ill-treated.
29. On 15 January 1993 at 07.00 hours the applicant was shot at in
the Mardin Kapi area in Turistik Street. He provides the following
account: when he was going by bicycle from home to his workplace with
his son, he noticed two people about 20-25 years old, one of them tall
and the other of average height. As a passenger minibus came past him
from behind very quickly he was driven towards the pavement where these
men were and he stopped. At that moment he saw one of the two men
firing a gun. Immediately he pulled out his unlicensed 7.65 mm pistol
from his waist, and fired six shots. None of them hit the mark. But
eight bullets from the gun fired at him hit his body, three of these
grazing his back and one his right leg. One entered his right arm, one
his left wrist, one between his left fore and middle fingers and one
through his right buttock into his belly.
30. The applicant got in a car and went to Diyarbakir hospital. He
gave the driver his unlicensed gun and asked him to take it and leave
it with one of his relatives.
31. According to the applicant his operation to remove bullets in the
Diyarbakir hospital intensive care unit was delayed for two hours by
the actions of the police. His relatives were later subjected to
insults and death threats at the hospital.
32. The applicant spent 11 days in the hospital. His left arm and
several fingers of his left arm are still unusable.
33. The applicant made a statement to the police at the hospital in
which he claimed that his assailants were police. He has not been asked
to make a statement about this crime by any prosecutor.
34. On 14 June 1993 at 07.30 hours, the applicant's uncle,
Hasim Yasa, was shot and killed. He had been managing the applicant's
newspaper business since March 1993, while the applicant kept away due
to fear. He died as a result of bullets fired in the head by unknown
assailants. His seven year old son was the only witness. On the same
day, the applicant was arrested, assaulted and threatened with death
by the police. He was told by the police that they had carried out the
shooting and that he was the intended target.
35. Investigations by the public prosecutor at Diyarbakir into the
shooting of the applicant and the killing of his uncle, which were
commenced at a date unspecified in 1993, are still pending.
b. Facts as presented by the Government
36. The Government refer to the investigations of the public
prosecutors into these events. They deny any allegations of wrongdoing,
ill-treatment of the applicant or his uncle for which State authorities
might be responsible. They state that the applicant has not complained
to the public prosecutor that the shooting of himself and his uncle was
the responsibility of the authorities.
2. Proceedings before the domestic authorities
Concerning the shooting of the applicant
37. A police report dated 15 January 1993 records the shooting to
have taken place at about 07.15 hours in Turistik Street. Fifteen empty
cartridges and two bullet shells were taken for forensic examination.
A plan of the scene was drawn up.
38. A police incident report dated 16 January 1993, countersigned by
the applicant's brother Nazif Yasa and a nurse, records that the
applicant was taken to hospital for treatment. The applicant was
reminded of his right to a lawyer. The applicant stated that he was not
fully conscious and that since he wanted a lawyer, he would not give
a statement.
39. A statement was taken by the police from the applicant in
hospital on 17 January 1993 in the presence of his lawyer. This
statement indicated as follows. On 15 January 1993, while riding on his
bicycle to his newspaper kiosk with his son Diren on the back, he
noticed two persons (description detailed) waiting, one about 10 metres
away, and became alarmed that they intended some harm. He tried to turn
his bicycle but it was struck by a taxi and he and his son fell to the
ground. He was aware of one of the two men shooting at him and he drew
his own Ceska pistol and fired back. He did not know if the second man
fired since he was injured and fainting. The applicant stated that he
was the intended murder victim because he ran a newsagent's business
and sold specifically left wing newspapers. There had been previous
attacks on newsagents which was why he had bought the Ceska pistol and
had been carrying it with him for the previous three-four days.
40. A police custodial and seizure record dated 15 January 1993
indicates that the applicant had given his pistol to the taxi driver
who had taken him to hospital and that it had then been taken to the
applicant's kiosk. The police questioned the person at the kiosk,
Sahabettin Altunhan, about the gun and it was produced from a scrap tin
box under the counter. The taxi driver and Sahabettin Altunhan were
taken into custody and their statements concerning the gun were taken
(dated 15 January 1993) from which it appears that the applicant gave
the gun to the taxi driver who took him to hospital, that he had given
it to another taxi driver (also taken into custody and a statement
taken on 15 January 1993) who knew the applicant's kiosk and that that
second taxi driver had placed the gun under the counter. The three
persons concerned were released from custody the same day.
41. In response to an enquiry of 15 January 1993 from the Security
Directorate police, the hospital doctor recorded the following injuries
to the applicant: one bullet entry to the left gluteal region, one
bullet entry and exit to the middle left fore arm, one bullet scratch
to the left index finger, one bullet entry and exit on the middle front
upper right arm between the elbow and axillary region and a bullet
track slightly below the skin tissue, surfacing under the arm.
42. A summary incident report dated 17 January 1993 concerning the
shooting incident and titled as crime record no 1993/C-14 referred to
the applicant as an injured suspect and stated that the other
unidentified suspects were at large.
43. A note dated from 20 January 1993 from the public prosecutor
requested the public security branch to pursue the grievous bodily harm
case involving the applicant and to investigate and apprehend the
suspects.
44. An expert ballistics report from the Diyarbakir regional criminal
police laboratory dated 11 February 1993 indicated that the cartridges
found at the scene of the shooting on 15 January 1993 showed identical
traces and marks to those in the shooting of Mehmet Tekdag in
Diyarbakir on 11 February 1993 and in the killing of Mehmet Sait Erten
in Diyarbakir on 3 November 1992.
45. A hospital report to the public prosecutor dated 2 March 1993
indicated that the applicant's general medical state was good and that
he was to be seen in a month's time. A further report dated
8 April 1993 indicated that the applicant would be unable to work for
one month and that recovery would take two months.
46. A note dated 14 April 1993 from the public prosecutor requested
the public security branch to pursue the grievous bodily harm case
involving the applicant and to investigate and apprehend the suspects,
prepare the case-file and otherwise for the search to continue and the
public prosecutor's office (office of the Attorney General) to be kept
informed every three months until the end of the deadline (indicated
as 15 January 1998).
Concerning the shooting of Hasim Yasa
47. A preliminary investigation file no. 1993/2248 was opened into
the killing of Hasim Yasa and is, according to a letter dated
2 November 1995 from the prosecutor at the Diyarbakir State Security
Court, still pending. The file as provided by the Government contains
an autopsy report dated 14 June 1993, recording four bullet entry
wounds, two of which were fatal. The police prepared a scene of the
incident sketch and took statements on 14 June 1993 from two witnesses
at the scene of the shooting, which occurred about 07.50 hours.
According to these statements, Vedat Simsek heard the shots, saw a
person running behind the people who were gathering but would be unable
to identify him. Ramazan Orhan, who ran a stall in the street, heard
but did not see the shooting. When he reached the scene, Hasim Yasa was
lying on the ground and he helped him into a taxi to take him to the
hospital. Minutes noted by the police on questioning Hasim Yasa's son
Aziz (7-8 years) recorded that the boy was with his father during the
incident, that he saw but did not recognise the attacker. The boy
stated that after the first shot Hasim Yasa fell to the ground, that
the attacker repeatedly fired his gun at him and then made his escape.
An expert ballistics report dated 21 June 1993 indicated that the
bullet shells retrieved from the scene were too deformed for useful
examination.
48. No other information has been received concerning any steps of
investigation taken in relation to these incidents.
B. The evidence before the Commission
49. In addition to the statements and investigation file materials
referred to above, submissions and materials have been submitted
relating to background events.
Facts as presented by the applicant
50. The applicant alleges that there has been a campaign of
persecution and attacks directed towards those involved in the
distribution of certain newspapers, in particular, the Özgür Gündem.
Reference is made to the following incidents:
Closure of the Özgür Gündem
51. The Özgür Gündem ceased publication in April 1994 as the result
of a culmination of prosecutions brought against it by the State. From
its inception in May 1992, it had been subject to prosecutions and
confiscations. It had temporarily ceased production from
15 January 1993 to 26 April 1993 due to the number of closure orders
and fines. While it was never officially banned from sale, there were
periods when confiscation and closure orders prevented or rendered
difficult publication or distribution. The Özgür Ülke, the successor
to the Özgür Gündem, was forced to close in February 1995 and the Yeni
Politika which replaced it ceased publication in August 1995.
Attacks on Özgür Gündem staff
52. The applicant has provided lists of attacks, ill-treatment,
detentions and threats made against staff and distributors of the Özgür
Gündem and similar newspapers in 1992, 1993 and early 1994. He alleges
that these show a pattern of targeting persons working for Özgür
Gündem.
53. The applicant states that at least seven journalists working for
the Özgür Gündem have been killed (Yahya Orhan, Hüseyin Deniz,
Musa Anter, Hafiz Akdemir, Cengiz Altun, Ferhat Tepe and Kemal Kiliç)
while others have been subject to attack and injury (Burhan Karadeniz,
Mehmet Senol, Aysel Malkaç and Nazim Babaoglu). Numerous other
journalists have been detained in custody and, in some instances, been
subject to ill-treatment (Salih Tekin).
54. The applicant states that news stands have been attacked for
selling the Özgür Gündem:
- On 16 November 1992, the news stand of Kadir Saka was subject
to an arson attack in Diyarbakir. He claimed that he had been
threatened by the security forces prior to the burning.
- On 19 November 1992, in the Sehitlik district of Diyarbakir,
a stationers owned by Süleyman Sunal was burned down.
- In Mazidagi, the main newsagent was threatened and subject to
an arson attack.
- On 24 November 1992 in Bingöl a teashop belonging to Zeki
Bulut, which sold the newspaper, was burned.
- In early October 1993, in the Yüksekova district of Hakkari,
the newsagents belonging to Ferhat Altun was attacked by special
teams.
- On 21 October ?1993, the Kültür bookshop in Van was burned down
after a molotov cocktail was thrown into it by unidentified
persons. The shop had been previously threatened by the security
forces.
- On 3 December 1994, Özgür Ülke's headquarters in Istanbul and
the office in Ankara were bombed, killing one person and injuring
18.
55. There have also been numerous incidents in which persons and
vehicles involved in distributing the Özgür Gündem have been attacked.
The applicant states that eleven vendors or distributors have been
killed: Kemal Ekinci, Halil Adanir, Orhan Karaagar, Lokman Gündüz,
Hasim Yasa, Zülküf Akkaya, Adil Baskan, Yalçin Yasa, Kadir ipeksümer,
Mehmet Sencer and Adnan Isik. In addition, on 29 November 1992
newsagent Coskun Baloglu, who had been previously threatened, was
attacked by two unknown persons with clubs and severely beaten; in
September 1993, Abdülkadir Altan was seriously injured when he was
attacked with meat axes by two persons within 150 metres of the
Mardinkapi police station in Diyarbakir; on 2 January 1993, six persons
selling the newspaper in Batman were stopped, beaten up and had their
papers confiscated in full sight of the police who did not act; on
8 August 1993 Senol Öztürk who was distributing newspapers in Mersin
was beaten up by the police and taken to the police station; the
vehicle belonging to the main newsagent in Bingöl was destroyed by fire
on 17 November 1992.
56. The applicant also states that persons involved in distributing
the newspaper have been frequently subjected to threats. In Bismil, the
main newsagent ibrahim Savas was threatened that he would be killed if
he sold the Özgür Gündem. On 18 November 1993, the main newsagent in
Silvan, Gani Amac, was threatened and stopped selling the paper. In
Batman, the chief newsagent Muharrem idman received death threats and
stopped selling the newspaper. The applicant states that on
20 November 1992 20 newsagents in Diyarbakir decided not to sell the
Özgür Gündem because of the risks involved. He refers also to
32 statements from streetsellers who in 1992-1993 decided not to sell
the newspapers because of the risks involved. On 12 October 1993 Volkan
distribution in Antalya received death threats for distributing the
paper. They had already been subject to an arson attack and four
vehicles doing freight work had been destroyed. They decided that they
could no longer distribute the paper. A similar threat was made to
Erdem Marketing in Antalya on 12 October 1993 and they also stopped
distribution.
57. A statement from the Secretary of the Human Rights branch at
Diyarbakir made in or about June 1994 refers to an eight and a half
months closure of the Özgür Gündem and it is alleged that the new
newspaper, Özgür Ülke, intended to replace it, has been effectively
prevented from being delivered to Diyarbakir, those copies which arrive
being subject to seizure.
58. Reference is also made to the numerous prosecutions instituted
against the Özgür Gündem and its owners, editors and journalists, which
have involved closure orders, confiscations and heavy fines. These are
the subject of Application No. 23144/93 Ersöz and others v. Turkey,
declared admissible on 20 October 1995. For example, from 31 May 1992
to April 1993, 39 out of 228 issues of the newspaper had been subject
to confiscation orders and between April and July 1993 a further
41 issues were confiscated. The prosecutions against the editors,
owners and journalists were based, inter alia, on the provision under
the Anti-Terrorism Act prohibiting propaganda against the indivisible
unity of the State.
59. The applicant refers to publications detailing information and
concerns about infringements on freedom of expression in Turkey through
legal and extralegal pressures on certain newspapers and those persons
involved with them eg. "A desolation called peace" report by the
Parliamentary Human Rights Group, "Censorship and the rule of law in
Turkey: violations of press freedom and attacks on Özgur Gündem" by
Article 19, "What happened to the press in 1993" by Özgür Gündem and
extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9) and "Free
Expression in Turkey 1993: Killings, convictions, confiscations"
Helsinki Watch Vol. 5 Issue 17 and "L'intimidation - rapport sur les
meurtres de journalistes et les pressions à l'encontre de la presse
turque" by Reporters Sans Frontières (January 1993).
Facts as presented by the Government
60. The Government refute any allegation that there has been official
intimidation of persons connected with the sale of newspapers, such
newspapers being freely available throughout Turkey. Only when the
courts in Istanbul, where the headquarters of the Özgür Gündem was
located, issued the requisite order for seizure were any steps taken
to confiscate copies of the paper. Seizure of copies would not be
possible without such order.
61. In a letter dated 2 November 1995, appended to the Government
observations, from the public prosecutor's office at the Diyarbakir
State Security Court to the Ministry of Justice (General Directorate
of International Law and Foreign Relations), it is stated that there
were no assassins acting on the State's behalf in South-Eastern
Anatolia. There were armed conflicts, taking place between armed
organisations or internal conflicts within organisations but
attributing such incidents to the State and labelling such individuals
as state assassins were ugly claims.
C. Relevant domestic law and practice
62. The Government submit that the following provisions are relevant.
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its
own acts and measures."
63. This provision is not subject to any restrictions even in a state
of emergency or war. The latter requirement of the provision does not
necessarily require proof of the existence of any fault on the part of
the Administration, whose liability is of an absolute, objective
nature, based on a theory of "social risk". Thus the Administration may
indemnify people who have suffered damage from acts committed by
unknown or terrorist authors when the State may be said to have failed
in its duty to maintain public order and safety, or in its duty to
safeguard individual life and property.
64. The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of the
powers conferred by this law are to be brought against the
Administration before the administrative courts."
65. The Turkish Criminal Code makes it a criminal offence
- to oblige someone through force or threats to commit or not to
commit an act (Article 188),
- to issue threats (Article 191),
- to commit arson (Articles 369, 370, 371, 372), or aggravated
arson if human life is endangered (Article 382),
- to commit arson unintentionally by carelessness, negligence or
inexperience (Article 383), or
- to damage another's property intentionally (Article 526 et seq.).
The Turkish Criminal Code makes it a criminal offence to subject
someone to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment, inflicted by civil
servants). As regards unlawful killings, there are provisions dealing
with unintentional homicide (Articles 452,459), intentional homicide
(Article 448) and murder (Article 450).
66. For all these offences complaints may be lodged, pursuant to
Articles 151 and 153 of the Code of Criminal Procedure, with the public
prosecutor or the local administrative authorities. The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding whether a prosecution should be initiated,
pursuant to Article 148 of the Code of Criminal Procedure. A
complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.
67. If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human lives or damaging property, if they have not followed
orders in conformity with Articles 86 and 87 of the Military Code.
Proceedings in these circumstances may be initiated by the persons
concerned (non-military) before the competent authority under the Code
of Criminal Procedure, or before the suspected persons' hierarchical
superior (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
68. If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial
Assembly). The local council decisions may be appealed to the Council
of State; a refusal to prosecute is subject to an automatic appeal of
this kind.
69. Any illegal act by civil servants, be it a crime or a tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts.
70. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
71. Damage caused by terrorist violence may be compensated out of the
Social Help and Solidarity Fund.
72. The applicant points to certain legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme :
73. Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
74. Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983. That includes Law 2935 on the
State of Emergency of 25 October 1983, under which decrees have been
issued which are immune from judicial challenge.
75. Extensive powers have been granted to the Regional Governor of
the State of Emergency by such decrees, especially Decree 285, as
amended by Decrees 424 and 425, and Decree 430.
76. Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas which are subject to the state of emergency,
with the effect that the decision to prosecute members of the security
forces is removed from the public prosecutor and conferred on local
administrative councils.
77. Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"No criminal, financial or legal responsibility may be
claimed against the State of Emergency Regional Governor or
a Provincial Governor within a state of emergency region in
respect of their decisions or acts connected with the
exercise of the powers entrusted to them by this decree,
and no application shall be made to any judicial authority
to this end. This is without prejudice to the rights of
individuals to claim indemnity from the State for damage
suffered by them without justification."
78. According to the applicant, this Article grants impunity to the
Governors. Damage caused in the context of the fight against terrorism
would be "with justification" and therefore immune from suit. The law,
on the face of it, grants extraordinarily wide powers to the Regional
Governor under the state of emergency and is subject to neither
parliamentary nor judicial control.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
79. The Commission has declared admissible the applicant's complaints
that he was seriously injured and his uncle killed, that he was ill-
treated by the police in detention and his treatment in hospital was
interfered with, that he has no access to court and no effective remedy
in respect of his complaints, that he has been subject to
discrimination and that his experiences disclosed restrictions on
Convention rights for ulterior purposes.
B. Points at issue
80. The points at issue in the present case are as follows:
- whether there has been a violation of Article 2 (Art. 2)
of the Convention in respect of the applicant and/or his
uncle;
- whether there has been a violation of Article 3 (Art. 3)
of the Convention in respect of the applicant;
- whether there has been a violation of Article 10
(Art. 10) of the Convention in respect of the applicant;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention in respect of the applicant;
- whether there has been a violation of Article 13
(Art. 13) of the Convention in respect of the applicant;
- whether there has been a violation of Article 14
(Art. 14) of the Convention in respect of the applicant;
- whether there has been a violation of Article 18
(Art. 18) of the Convention in respect of the applicant.
C. Approach to the evidence
81. The Commission notes that there are important disputes of fact
between the parties. In particular, it is alleged by the applicant that
he and his uncle were shot due to their involvement in the distribution
of the newspaper Özgür Gündem as part of a campaign of attacks against
that and other newspapers and that this campaign was with the
connivance or acquiescence, if not involving the direct participation,
of agents of the State. The Government deny that there has been any
such campaign. There are also disputes of fact as concerns alleged ill-
treatment of the applicant by police officers and threats made by them.
The Commission recalls that there is a pending application No. 23144/93
Ersöz and others v. Turkey in which owners, editors and journalists of
the Özgür Gündem invoke, inter alia, Article 10 (Art. 10) in relation
to the measures taken against, and attacks made on, the newspaper and
the persons concerned in its publication and distribution.
82. The Commission, after consultation of the parties, did not hear
oral evidence from witnesses in this case. It is of the opinion that
the allegations are of a width and character that would not be easily
amenable to clarification from oral testimony from the persons who
could be identified as connected with the facts of this case. It
observes that the events at the heart of the application are not
disputed. The applicant was shot at and seriously injured in an attack
by two men on 15 January 1993. His uncle Hasim Yasa was shot and killed
by a gunman on 14 June 1993.
83. The Commission has consequently decided to examine the
applicant's allegations as to the violations disclosed by these events
on the basis of the written materials in the file, including the
contents of the investigation files provided at its request by the
Government and the submissions of the parties made in answer to the
questions posed by the Commission.
D. As regards the complaints relating to Hasim Yasa
84. The applicant has introduced a complaint in respect of the
killing of his uncle Hasim Yasa, invoking Article 2 (Art. 2) of the
Convention in respect of his death. He states that he brings this
complaint on behalf of his uncle.
85. The Government submit that the applicant has no standing to
introduce a complaint on behalf of Hasim Yasa, his uncle, since no
authority for the application has been presented by the legal heirs and
the applicant cannot claim to be a victim in respect of the killing of
his uncle.
86. While the Government did not challenge the status of the
complaints on behalf of Hasim Yasa before the application was declared
admissible, the Commission has considered it appropriate to state its
position on this aspect as a preliminary to its examination on the
merits
87. The Commission recalls that in previous cases concerning deaths
it has generally been the spouse or heirs to the estate who have
introduced applications before the Convention organs (eg. Eur. Court
HR, McCann and others v. the United Kingdom judgment of
27 September 1995, Series A no. 324). It is not however the position
under the Convention system of protection that only those persons
enjoying legal rights of representation or succession under domestic
law may make complaints on behalf of alleged victims of violations of
the provisions of the Convention, though the lack of standing in
domestic law may be of relevance to the consideration of whether an
applicant has legitimate interest in making the complaints. The
Commission recalls that in the case of S.P., D.P. and A.T. v. the
United Kingdom (No. 23715/94, dec. 20.5.96) an issue arose as to
whether the solicitor who had represented children in child care
proceedings was able validly to introduce a complaint before the
Commission on their behalf. It had regard to the constant case-law
underlining that the object and purpose of the Convention as an
instrument for the protection of individual human beings requires that
its provisions, both procedural and substantive, be interpreted and
applied so as to make its safeguards practical and effective (eg. Eur.
Court HR, Loizidou judgment of 23 March 1995, Series A no. 310,
p. 26-27, paras. 70-72). It concluded that, notwithstanding the lack
of standing in domestic law for the solicitor to represent the
children, it would examine whether other or more appropriate
representation existed or was available, the nature of the links
between the solicitor and the children, the object and scope of the
application introduced on their behalf and whether there existed any
conflicts of interest.
88. While in the present case the Government appear to allege that
other persons have standing in domestic law to bring a case, it is not
in fact apparent whether Hasim Yasa has a surviving spouse or parent
or any child of adult age, who could or would more appropriately
introduce a case. Since however the applicant is a close relative of
the deceased Hasim Yasa, and he was, on facts uncontested in the
application, in a business relationship with his uncle to the extent
that the uncle assisted in his newspaper business, the Commission sees
no ground for applying rigid formalism. It finds no indication that any
conflict of interest arises in the applicant complaining of the killing
of his uncle and notes that the applicant's complaints about the action
against himself and about that directed against his uncle are alleged
to be factually linked. In these circumstances, the Commission
considers that the complaints introduced by the applicant in respect
of his uncle Hasim Yasa constitute a valid exercise of the right of
individual petition guaranteed under Article 25 (Art. 25) of the
Convention. However, when complaining of the killing of his uncle, the
applicant acts as a person who is himself directly affected by this act
and not as his uncle's representative, since a deceased person is
unable, even through a representative, to lodge an application with the
Commission.
E. As regards Article 2 (Art. 2) of the Convention
89. Article 2 (Art. 2) of the Convention reads as follows:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling
a riot or insurrection."
90. The applicant submits that the attacks carried out on himself and
his uncle were carried out by or with connivance of the police. He
points to the fact that he was threatened by a senior police officer
that his kiosk would be burned, which threat was later carried out. He
refers to two occasions on which he was taken into custody by the
police and subjected to ill-treatment: in November 1992 and on
14 June 1993, after his uncle's death, when the police officers told
him that it should have been him that was killed and not his uncle and
that he would be killed next time.
91. Alternatively, the applicant complains that the State is
responsible for a violation of Article 2 (Art. 2) by reason of their
failure to protect the right to life, through preventive steps taken
in response to attacks being carried out on persons involved in the
distribution of newspapers and through effective investigation and
prosecution of those who are engaged in a campaign of violence and
killing.
92. The Government maintain that there is no evidence to substantiate
the applicant's allegations that the security forces were responsible
for the attacks on him or his uncle. There is no evidence to support
the applicant's claim that a police officer told him that he was the
real target for the killers of his uncle. All his claims rest on mere
assertions, based on unreal and illusory grounds and he seeks to
bolster them with lists and press releases of events and incidents
which have nothing to do with the present case. By these subterfuges,
the applicant seeks to divert attention from his lack of proof in his
case and build up a general presumption of the culpability of the
Turkish State. The Government strenuously resist the validity of the
Commission admitting complaints by an applicant which have not been
directly proved.
93. The Government submit that investigations were instituted
promptly into the attacks on the applicant and his uncle and are being
pursued in conformity with the normal procedures and the applicable
laws. They point out the impossibility of finding proof for the
applicant's unreal allegations and emphasise the difficulties of
concluding investigations where serious terrorist activity is involved.
94. The Commission finds that there is no evidence before it which
would permit a finding that agents of the security forces or police
were involved in the shooting either of the applicant or his uncle.
Notwithstanding the serious concern which must arise from the details
of killings and injuries of persons involved in the distribution of
certain newspapers, which occurrences have not been denied by the
Government, this cannot of itself justify any presumption as to
involvement of State agents or of any direct responsibility of the
State for the attacks which are the subject of this application.
95. The Commission has had regard to the applicant's arguments that
the State has failed nonetheless to protect them, either substantively
or procedurally.
96. As regards any duty of protection in respect of violence or
threats of violence, the Commission recalls that it has held, in a case
concerning the killing of the applicant's husband by the Provisional
IRA, that Article 2 (Art. 2) may give rise to positive obligations on
the part of the State. It excluded that a positive obligation to
protect from any possible violence could be deduced from Article 2
(Art. 2) and in a case where a person, subject to the threat of
terrorist violation, complained of the withdrawal of a police
bodyguard, the Commission held that Article 2 (Art. 2) could not be
interpreted as imposing a duty on a State to give protection of this
nature, at least not for an indefinite period (Nos. 9438/81
dec. 28.2.83, D.R. 32 p. 190, and 6040/73 Coll. 44 p. 121).
97. In the present case, it is not alleged by the applicant that any
specific threat of killing was directed against him or his uncle before
the events concerned. He refers to a threat that his kiosk would be
burned and that he was ill-treated in police custody. While it appears
that he anticipated a potential threat, since he took the step of
obtaining and carrying a gun, it would appear that this was in response
to attacks on other newsagents which were occurring around that time.
98. It is not apparent that the applicant made any request to the
authorities for protection or brought to their attention his fear of
attack. The Commission does note that on 23 December 1992 the
journalist Kemal Kiliç petitioned the Sanliurfa Governor on behalf of
the persons working in the Özgür Gündem office in Sanliurfa concerning
the death threats made to persons distributing the newspaper, the reply
of the Governor of 30 December 1993 being that no protection would be
offered to distributors and stating that no attacks had been made in
the area. It has not been brought to the attention of the Commission
that any similar appeal for help on behalf of the distributors in
Diyarbakir was made. However, the applicant has referred to petitions
dated 12 November 1992 made by Yasar Kaya, journalist and owner of the
Özgür Gündem, to the Prime Minister Süleyman Demirel, the deputy Prime
Minister Erdal inönü and to the Minister responsible for the press
Gökberk Ergenekon alleging persecution against the Özgür Gündem,
including the killing of various journalists and referring to threats
against the lives of distributors and sellers, particularly in the
emergency region.
99. The Commission cannot ignore however that these events took place
in an area of Turkey subject to serious disturbances of public order.
The Court's judgment in the Aksoy case (Eur. Court HR, judgment of
18 December 1996 to be cited in Reports 1996, para. 8) refers to the
conflict in the South-East as having claimed the lives of 4,036
civilians and 3,884 members of the security forces. The area has,
because of the grave difficulties, been subjected to emergency rule
(ten of the eleven provinces in the south-east).
100. The Commission observes that the Turkish criminal law prohibits
the acts complained of. It notes that there are large numbers of
security forces in the area pursuing the aim of establishing public
order. It does not find it established that the Turkish Government have
failed in their obligation to protect the lives of the applicant and
his uncle through preventive or protective measures.
101. As regards the existence of effective investigatory machinery to
enforce the prohibitions in criminal law, the Commission notes that the
attacks on the applicant and his uncle were subject to investigation
by the public prosecutor in conformity with applicable provisions of
the Turkish Code of Criminal Procedure. While it cannot be a
requirement of Article 2 (Art. 2) that a State must necessarily succeed
in locating and prosecuting perpetrators of mortal or life-threatening
attacks, the case-law of the Convention organs imposes a requirement
that the investigation undertaken be effective:
"The obligation to protect the right to life under this
provision, read in conjunction with the State's general duty
under Article 1 (Art. 1) of the Convention to 'secure to everyone
within their jurisdiction the rights and freedoms defined in
[the] Convention', requires by implication that there should be
some form of effective official investigation when individuals
have been killed as a result of the use of force by, inter alios,
agents of the State." (Eur. Court HR, McCann and others v. the
United Kingdom judgment of 27 September 1995, Series A no. 324
para. 161.
102. In the case of Kaya v. Turkey (Application No. 22729/93 Comm.
Rep. 24.10.96 pending before the Court) the Commission found a
violation of Article 2 (Art. 2) in light of the major deficiencies in
the investigation undertaken into the death of the applicant's brother
who, according to official reports, had been shot during a clash
involving the security forces. The inadequate and ineffective
investigation concerning, inter alia, the defective autopsy procedures
and lack of detailed enquiry into the circumstances of the death, was
such as to amount in that case to a failure to protect the right to
life.
103. In the present case, it appears that the circumstances of the
shooting of the applicant and his uncle were investigated by the
police. The time and location of the events were examined, statements
were taken from some witnesses at the scene, and ballistics
examinations of bullet fragments were carried out. As regards the
shooting of the applicant, there was also a request from the public
prosecutor to the public security branch that they should pursue the
case and investigate and apprehend the suspects.
104. The applicant alleges however that no effective efforts have been
made to to identify and locate the perpetrators whom he considers to
have been agents of the State or persons operating on their behalf. The
Government have submitted that the applicant never made formal
complaint to this effect to the public prosecutor. The Commission notes
that, while the applicant alleges that in his statement to the police
at the hospital he claimed that his assailants were police, the
recorded statement makes no express reference to his suspicions of
State involvement in the attack on himself. Nor does it appear that any
complaint of State involvement was made by the applicant to the public
prosecutor as regards the killing of his uncle. Nonetheless, the
applicant in his statement dated 17 January 1993 to the police stated
that he was the intended murder victim because he ran a newsagent's
business selling left wing newspapers and that there had been attacks
previously on newspaper sellers. Having regard to appeals made for
protection and protests made by Yasar Kaya, journalist and owner of the
Özgür Gündem, at ministerial level and to the considerable number of
attacks on persons connected with that newspaper, the Commission does
not consider that the authorities were or should have been unaware that
those involved in the publication and distribution of the Özgür Gündem
feared that they were falling victim to a concerted campaign tolerated,
if not approved, by State officials.
105. In questions put to the parties, the Commission requested the
Government to specify what steps had been taken to investigate the
incidents and attacks on those involved in certain newspapers and to
identify the persons or groups involved. The Government have not
responded with any information beyond attacking the illusory nature of
the allegations and the general lack of substantiation. The Government
were also requested to clarify what steps were taken to verify the
applicant's allegations, expressly drawn to their attention on
communication of the application by the Commission, that the gunmen who
attacked him and his uncle were acting on behalf of the State. The
Government have not drawn any new matters to the attention of the
Commission beyond the documents provided in the investigation file (see
paras. 37-47 above). It would therefore appear that no steps were taken
to verify the applicant's allegation that he was threatened by
policemen, naming one as Commissioner Kemal Fidan, before his kiosk was
burned down or that policemen took him into custody following his
uncle's death, ill-treated him and told him that he had been the
intended victim. The authorities do not seem to have investigated
seriously whether the attacks on the applicant and his uncle were part
of a concerted action directed against the Özgür Gündem and those
involved in the production and distribution of that newspaper, this
being an avenue which it would have been natural to explore in view of
the numerous attacks on persons having links with that newspaper. On
the contrary, the Government appear to take the view, as adopted by the
public prosecution authorities in Diyarbakir, that the attacks were
carried out by the PKK or similar terrorist groups and that no further
step is necessary beyond requiring the police to maintain their
enquiries and report about any progress to the prosecution (see para.
46). The Commission notes that the file which has been provided
contains no reports from the police, despite the prosecutor's request
for updates on progress.
106. The Commission recognises the seriousness of the allegations
being made against the authorities in the South-East with respect to
acquiescence or connivance in a campaign of targeted attacks and can
understand a certain reluctance or disbelief in the Government to
accept that these might be well-founded. It nonetheless behoves a
Contracting State, respecting the rule of law and having regard to its
obligation under Article 1 (Art. 1) of the Convention to secure to
everyone within its jurisdiction the enjoyment of the rights and
freedoms guaranteed therein, to verify whether allegations, based on
actual facts and events, of serious wrongdoing, whether committed by
State officials or other persons, are in any respect well-founded. It
notes that the Government have not denied that any of the incidents
referred to by the applicant, as regards killings, injuries,
disappearances of persons and damage to property connected to the Özgür
Gündem, have in fact occurred.
107. The Commission is of the opinion that the failure to make any
further or more detailed investigation into the attacks on the
applicant and his uncle amounts to a failure to protect the right to
life.
CONCLUSION
a violation of Article 2 (Art. 2) of the Convention in respect of the
applicant and his uncle Hasim Yasa.
F. As regards Article 3 (Art. 3) of the Convention
109. The Commission will now examine whether the applicant's
complaints also disclose a violation of Article 3 (Art. 3) of the
Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
110. The applicant refers to the life-threatening attack which he
suffered, the ill-treatment which he received in police custody on
14 June 1993 and the interference in his treatment at hospital by the
police following the shooting on 15 January 1993.
111. The Government deny that there is any substantiation to the
applicant's allegations.
112. The Commission recalls its findings above (para. 94). It notes
that it has not been established that the authorities were implicated,
directly or indirectly in the attacks made on the applicant and his
uncle. It also finds on the basis of the materials contained in the
file and of the submissions made by the applicant that the applicant's
complaints concerning police obstruction at the hospital and ill-
treatment in custody following his uncle's funeral have not been
substantiated.
CONCLUSION
113. The Commission concludes, unanimously, that there has been no
violation of Article 3 (Art. 3) of the Convention.
G. As regards Article 10 (Art. 10) of the Convention
114. Article 10 (Art. 10) provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
115. The applicant alleges that the attacks on himself and his uncle
formed part of a campaign aimed at suppressing the publication and
distribution of certain newspapers. The attacks themselves and the
failure to protect or properly investigate disclose violations of the
right to freedom of expression guaranteed under Article 10 (Art. 10).
116. The Government deny that there is any proof to support
allegations of State persecution of certain newspapers and those
involved in their publication and distribution or any failure to
provide adequate protection or investigations pursuant to Turkish law.
117. The Commission has not found it established that the attacks
against the applicant and his uncle resulted from deliberate actions
by members of the security forces. Insofar as the applicant complains
that the attacks disclose a policy of suppression of the Özgür Gündem
newspaper, the Commission considers that it is not called upon in this
individual application to assess whether there has been an unjustified
interference with the freedom of expression of the newspaper or its
freedom to impart information as guaranteed under Article 10 (Art. 10).
In these circumstances, the Commission cannot find it established that
there has been an interference with the right protected by Article 10
(Art. 10) of the Convention in respect of the applicant as a
distributor of the newspaper.
CONCLUSION
118. The Commission concludes, by 31 votes to 1, that there has been
no violation of Article 10 (Art. 10) of the Convention.
H. As regards Articles 6 para. 1 and 13 (Art. 6-1, 13) of the
Convention
119. Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention
provide as follows:
Article 6 para. 1 (Art. 6-1)
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law ... ".
Article 13 (Art. 13)
"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."
120. The applicant complains under Article 6 (Art. 6) of a failure to
initiate proceedings before an independent and impartial tribunal
against those responsible for the life-threatening attack, as a result
of which he cannot bring civil proceedings arising out of the attack
against him. Under Article 13 (Art. 13) he complains of the lack of any
authority before which his complaints can be brought with any prospect
of success. The applicant refers to the static nature of the criminal
investigations still pending into the attacks on himself and his uncle
and the assumption, without examination of other possibilities, that
the attacks were the responsibility of terrorist elements.
121. The Government contend that there are several effective domestic
remedies at the applicant's disposal. They refute the suggestion that
the criminal prosecution is ineffective, stating that it is unrealistic
to give exclusive weight to the fact that the criminal investigation
is still pending. These proceedings face difficulties in locating
unknown perpetrators and are being conducted in the usual manner. In
any event, they point out that the applicant has not in fact complained
to the authorities that the security forces or their agents are
responsible for the shootings. Secondly, the applicant has not utilised
the other effective remedies available to him in respect of his
complaints which exist independently from the criminal proceedings, eg.
civil and administrative proceedings. They provide copies of judgments
indicating that damages have been paid in respect of deaths and
injuries in custody caused by the police.
122. The Commission recalls its finding above that the absence of
sufficient investigations constituted a breach of Article 2 (Art. 2)
of the Convention (para. 104). Since the absence of any adequate and
effective investigation into the attacks on the applicant and his uncle
also underlies the applicant's complaints under Article 6 and 13
(Art. 6, 13) of the Convention, it finds it unnecessary to examine them
separately.
CONCLUSIONS
123. The Commission concludes, by 31 votes to 1, that no separate
issue arises under Article 6 para. 1 (Art. 6-1) of the Convention.
124. The Commission concludes, by 30 votes to 2, that no separate
issue arises under Article 13 (Art. 13) of the Convention.
I. As regards Articles 14 and 18 (Art. 14, 18) of the Convention
125. Articles 14 and 18 (Art. 14, 18) of the Convention provide as
follows:
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 18 (Art. 18)
"The restrictions permitted under this Convention to the said
rights and freedoms shall not be applied for any purpose other
than those for which they have been prescribed."
126. The applicant maintains that because of the Kurdish origin of
himself and his uncle the various alleged violations of their
Convention rights were discriminatory, in breach of Article 14
(Art. 14) of the Convention. He also claims that their experiences
represented an authorised practice by the State in breach of Article
18 (Art. 18) of the Convention.
127. The Government have not addressed these allegations beyond
denying the factual basis of the substantive complaints.
128. The Commission has examined the applicant's allegations in the
light of the evidence submitted to it, but considers them
unsubstantiated.
CONCLUSIONS
129. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention.
130. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention.
J. Recapitulation
131. The Commission concludes, by 30 votes to 2, that there has been
a violation of Article 2 (Art. 2) of the Convention in respect of the
applicant and his uncle Hasim Yasa (para. 108 above).
132. The Commission concludes, unanimously, that there has been no
violation of Article 3 (Art. 3) of the Convention (para. 113 above).
133. The Commission concludes, by 31 votes to 1, that there has been
no violation of Article 10 (Art. 10) of the Convention (para. 115
above).
134. The Commission concludes, by 31 votes to 1, that no separate
issue arises under Article 6 para. 1 (Art. 6-1) of the Convention
(para. 123 above).
135. The Commission concludes, by 30 votes to 2, that no separate
issue arises under Article 13 (Art. 13) of the Convention (para. 124
above).
136. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention (para. 129 above).
137. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention (para. 130 above).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. French)
OPINION PARTIELLEMENT DISSIDENTE DE M. A.S. GÖZÜBÜYÜK
À LAQUELLE SE RALLIE M. F. MARTINEZ
A mon très grand regret, je ne peux partager l'avis de la
majorité de la Commission concernant l'article 2 de la Convention qui
ne s'impose pas dans la présente requête.
- La majorité de la Commission a elle-même accepté au paragraphe 94
du rapport qu'il n'y avait pas de preuves permettant de conclure que
des membres des forces de sécurité avaient été impliqués dans le
meurtre de l'oncle du requérant, et dans l'attaque dirigée contre lui-
même.
- La Commission a de surcroît admis, en se référant à sa
jurisprudence antérieure, que l'Etat ne pourrait pas être tenu de
fournir à chaque individu une protection pour une période indéterminée.
- Les conditions particulières de la criminalité liée au terrorisme
du PKK rendent très difficile sinon parfois impossible l'identification
des auteurs de différents actes de terrorisme. Dans la présente
requête, les deux affaires n'ont pas été classées et la Commission
relève que l'instruction a été menée conformément aux règles de
procédure du Code de procédure pénale.
Au vu de cet état de choses, il me semble, qu'il est impossible,
du simple fait de la non-identification des auteurs d'un crime dans une
affaire de criminalité terroriste complexe, de conclure à la violation
de l'article 2 de la Convention.
(Or. English)
PARTLY DISSENTING OPINION OF MR. L. LOUCAIDES
I find myself unable to agree with the decision of the majority
that there has been no violation of Article 10 of the Convention in
this case.
At all material times the applicant carried out the business of
a newsagent or newspaper vendor. From the evidence before the
Commission it appears that the applicant has been a victim of violence
and threats. The applicant's uncle Hasim Yasa had been running the
applicant's newspaper business since March 1993. On 14 June 1993 he
was shot and killed. The Commission found that the respondent
Government was responsible for a violation of Article 2 of the
Convention in respect of the applicant and his uncle Hasim Yasa
inasmuch as the Government failed to make proper investigations into
the attacks on the applicant and his uncle. Furthermore as noted by
the Commission in paragraph 103 of the Report the Government have not
denied that any of the incidents referred to by the applicant, as
regards killings, injuries, disappearances of persons and damage to
property connected to the newspaper Ozgur Gundem, have in fact
occurred. This newspaper was one of those distributed by the
applicant.
In my opinion the facts and circumstances of the case lead to the
clear inference that the capacity of the applicant and his uncle, as
distributors of the newspaper in question must have been the real cause
of the tragic situation in which they found themselves and of the
consequent failure of the Government to investigate properly that
situation.
The Commission and the Court have always emphasised that freedom
of expression constitutes one of the essential foundations of a
democratic society and that the safeguards to be afforded to the press
are of particular importance (eg. Eur. Court HR Goodwin v. the United
Kingdom judgment of 27 March 1996, Reports 1996 para. 39).
A distributor of a newspaper whether by profession or otherwise, is
acting as a vehicle for the imparting of information and as a necessary
instrument for the free flow of information and freedom of expression.
In effect he is himself part and parcel of the apparatus for the
effective exercise of the freedoms enshrined in Article 10 of the
Convention and for that matter he is a person who in his own right can
claim protection of these freedoms, especially that of imparting of
information to the public at large through the distribution of
newspapers.
Therefore, once it has been established that the applicant and
his uncle became the target and the victims of incidents of violence
because of their capacity as distributors of newspapers and that the
state failed to investigate sufficiently these incidents, it is my
conclusion that this amounts to an unjustified interference with their
freedom to impart information guaranteed under Article 10 of the
Convention.
In these circumstances I find that there has been a violation of
Article 10 of the Convention in this case.
Full & Egal Universal Law Academy