|
1. FOREWORD
This report is a compilation of cases assisted by the Kurdish Human Rights Project (KHRP) which have been declared inadmissible by the European Commission of Human Rights (the Commission). This publication is part of a series of cases brought by Kurds against Turkey. KHRP admissible decisions have already been collected in six Volumes but this is the first report dealing with inadmissible decisions. We hope that this report will give the reader a fuller picture of the type of applications introduced before the European Commission on behalf of Kurdish people. Readers may also be interested in further examining the Commission's criteria for declaring cases admissible, or inadmissible.
So far, 61 cases have been declared fully admissible by the Commission and 4 cases have been declared partly admissible and partly inadmissible. This Volume is a compilation of 12 inadmissible applications and 3 partly adjourned/ partly inadmissible applications. The European Court of Human Rights (the Court) have now delivered judgments in 11 cases assisted by the KHRP1, finding a breach of the Convention in all cases except that of Gündem v Turkey. One of the important results produced by such a large number of admissible applications and findings of violations by the Court has been to generate greater awareness about the overall human rights situation in Turkey and to stimulate a debate both within and outside Turkey regarding the issues raised by the applicants in their complaints.
Since very few applications actually lodged with the Commission ever pass the admissibility stage2, KHRP's record in this respect remains outstanding. Although some cases are clearly stronger than others, it is sometimes difficult to predict the outcome of an application. The following analysis aims at shedding light on the reasons why these applications were declared inadmissible by comparing them and drawing factual and legal conclusions as to the weaknesses of these cases.
1 See cases of Akdivar v Turkey (16 September 1996 (merits) and 1 April 1998 (article 50) ); Aksoy v Turkey (18 December 1996); Aydin v Turkey (25 September 1997); Menteş v Turkey (28 November 1997 (merits) and 24 July 1998 (article 50)); Kaya v Turkey (19 February 1998); Selçuk and Asker v Turkey (24 April 1998); Gündem v Turkey (25 May 1998); Kurt v Turkey (25 May 1998); Tekin v Turkey (9 June 1998); Ergi (28 July 1998); Yaşa (2 September 1998);
2 For instance, a survey of activities and statistics published by the Commission in 1995 shows that in that year, 2093 applications were declared inadmissible, 89 were struck off the list and 807 were declared admissible. (European Commission of Human Rights, Survey of activities and Statistics, 1995).
Inadmissibility rules under the Convention: law and practice
Cases can be declared inadmissible under different heads, as explained below.
I. Firstly, the Commission will decide whether it is competent to examine a particular complaint.
(a) The question of 'who is entitled to bring a claim against who?' is dealt with under the head of'admissibility ratione personae'.
The rule is that complaints under the European Convention of Human Rights (the Convention) can only be brought by "a person, non-governmental organisation or group of individuals claiming to be a victim of a violation" of a Convention right, (article 25(1) of the Convention)". Moreover, complaints can only be brought against the State itself or state bodies such as courts, security forces or local government.
Individual complaints against states which have not ratified the Convention or accepted the right of individual petition in accordance with article 25 will also be rejected on this ground. Furthermore, an applicant must claim to be a victim of the alleged violation and must therefore be affected by the matter complained of.
In the case of Zengin v Turkey4, the complaint concerned the right of a trade-union (Egit-Sen) of which the applicant was an active member. Unfortunately, the applicant failed to submit a power enabling her to represent the Union before the Commission. The Commission was of the opinion that the applicant could not therefore be considered to be a victim within the meaning of article 25(1) and rejected this part of the application as incompatible ratione personae.
(b) The question of the subject matter of a complaint is dealt with under the head of 'admissibility ratione materiae'.
The competence of the Commission only extends to examining complaints concerning rights and freedoms contained in the Convention. For example, in the cases of N.A. v Turkey and Sevtap Yokus v Turkey5, the applicants claimed that they did not have a fair trial, as required by article 6 of the Convention. However, the Commission noted that the proceedings brought against the applicants in these cases were of a disciplinary character and could not therefore be considered to have concerned either 'civil rights or obligations' or 'the determination of a criminal charge' within the meaning of article 6.
3 Article 25 of the Convention states, so far as relevant:
(1) The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.
(2) Such declarations may be made for a specific period.
4 See decision 12 in this report
5 See decisions 13 and 14 in this report.
| 
