ELCI AND OTHERS v. TURKEY JUDGMENT
117
“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 [the] 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.”
702. They referred to the nature of their work and the history of
intimidation and torture in police custody already established by the
Convention organs for the years in question, which placed them in a
category of people who were likely to have recourse to the Convention on
their own behalf or on behalf of their clients. This context produced a
“chilling effect” on the exercise of the right of individual petition and thus
constituted an unjustified interference with the Article 25/34 right. They
recognised, however, that an interference with a third party's application to
the Convention organs did not amount, of itself, to evidence of a breach of
Article 25 in respect of the rights of that person's legal representative.
Nevertheless it was claimed that four of the applicants - Sabahattin Acar,
Baki Demırhan, İmam Şahin and Arzu Şahin - were charged with criminal
conduct simply on the basis of making applications to the Commission. This
was confirmed in the statement of the Minister of Justice dated
14 November 1996 (paragraph 558 above).
703. Recently, all the applicants contended that the events which they
had described were in breach of the right of individual petition, being
intended to have a chilling effect on any lawyers willing to operate in the
human rights field, either domestically or internationally. Whilst the
indictment had been unclear in its European references, the intention of the
officials concerned was made clear in their evidence to the Convention
organs.
704. The applicant Tahir Elçi further complained that the treatment to
which he was subjected was related to the fact that he had assisted clients in
bringing cases before the Commission.
2. The Government
705. The Government submitted that the complaints under former
Article 25 of the Convention were wholly unfounded. There was no
relationship whatsoever between the cases brought by the applicants,
MM Elçi, Şahin, Acar and Demırhan, before the European Commission of
Human Rights on behalf of their clients and the domestic criminal
proceedings initiated against them for their alleged PKK activities.
706. These applicants lodged their own applications with the
Commission during their detention at the Diyarbakır provincial gendarmerie
command, with which applications there was no interference. The
Government recalled that Articles 36 and 90 of the Constitution safeguarded