CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23185/94                       by Ismet ASKER                       against Turkey        The European Commission of Human Rights sitting in private on 28 November 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 15 December 1993 by ismet Asker against Turkey and registered on 7 January 1994 under file No. 23185/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;          Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin, born in 1920 or 1933 and resident at Melikahmet Cd., Lülebey mh.   He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex.        The facts of the present case as submitted by the applicant may be summarised as follows.        The applicant was resident at Islam village, Kulp.   In the winter of 1992, the security forces sent a list of names to ten families living in the hundred household village.   They were told, "You will leave for good by the summer."   At one point, the forces said that they would not burn down things after all.   The applicant does not understand why that changed.        On the morning of 16 June 1993, at around 07.00-08.00 hours, about 400 soldiers organised a raid on Islam village on the orders of the Kulp District Gendarme station Commander, Recep Cömert.   During the operation, the forces set fire to the applicant's two-storey, eight roomed house.   They gave no grounds for doing so.   Just before, a soldier had told the applicant to go and get his things out of his house.   He and his wife went inside and started gathering up their things.   They realised the house had been set on fire and they rushed out of the back door.   They waited on the main road.   In the meantime, the forces frightened villagers, who had come to try to put out the fire, with their firearms and they prevented them from putting out the fire.   The forces waited until the house had completely burnt down. They then burnt down the house of K.S., a little further on, together with all the household effects.   The forces then left.        On 25 June 1993, the applicant presented a petition to the Kulp District Governorship.   Since the applicant does not speak Turkish, the District Governor asked him through an interpreter whether there was anyone he knew amongst the soldiers who came to the village.   He said that he knew Captain Recep Cömert.   The District Governor then said, "All right.   I am receiving the petition.   You can go."   The applicant has heard nothing further about his petition.   The petition indicated the losses suffered by the applicant.        Ten days after his house was burned down (i.e. on 26 June 1993), soldiers, again under the command of Captain Recep Cömert, organised another raid on the village.   That time, the forces burnt down the homes of S.T., A. K.E. and K.S. and then burnt down the water-powered flour mill, run by N.E., N.S., K.S. and H.E.   No one was taken into custody.   Captain Recep turned to the villagers and showered them with threats, saying, "All of you will leave this village.   Otherwise next time we come, we shall burn you all together with your houses."   They then left the village.        It is believed that Captain Recep Cömert has been moved to Mersin.   A transfer to a place on the coast and outside the area where there is fighting is usually seen as a reward for services rendered.   COMPLAINTS        The applicant complains of violations of Articles 2, 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of the First Protocol.        As to Article 2, the applicant complains of the life-threatening attack to which he was subjected by agents of the State, of the threat to life occasioned by gross recklessness on the part of agents of the State, of the lack of any effective system for ensuring protection of the right to life and of the inadequate protection of the right to life in domestic law.        As to Article 3, he complains of an inhuman and degrading practice of clearing villages, a form of collective punishment, and of discrimination on grounds of race or ethnic origin.        As to Article 5, he complains of the complete lack of security of the person.        As to Article 6, he refers, on the one hand, to the impossibility of challenging the deprivation of property before it took place, which represents a denial of access to court for a determination of civil rights and, on the other hand, to the failure to initiate proceedings before an independent and impartial tribunal against those responsible for the attacks and destruction, as a result of which he cannot bring civil proceedings arising out of these events, which is also a denial of effective access to a court.        As to Article 8, the applicant complains of the destruction of his home and family life.        As to Article 13, he refers to the lack of any independent national authority before which his complaints can be brought with any prospect of success.        As to Article 14, he considers that he has been subject to discrimination on account of race or ethnic origin in the enjoyment of his rights under Articles 2, 5, 6 and 8 of the Convention and Article 1 of the First Protocol.        As to Article 18, he alleges that the interferences in the exercise of his Convention rights were not designed to secure the ends permitted under the Convention.        As to Article 1 of the First Protocol, he complains of the destruction of his home and possessions.        As to the exhaustion of domestic remedies, the applicant considers that there is no requirement that he pursue alleged domestic remedies.   In his opinion, any alleged remedy is illusory, inadequate and ineffective because        (a)    the operation which led to the threat to life and      destruction at issue in this case was officially organised,      planned and executed by the agents of the State ;        (b)    there is an administrative practice of non-respect of the      rule which requires the provision of effective domestic remedies      (Article 13) ;        (c)    whether or not there is an administrative practice,      domestic remedies are ineffective in this case, owing to the      failure of the legal system to provide redress ;        (d)    alternatively, the applicant has done everything he can do      to exhaust domestic remedies by submitting a petition to the      District Governor ; the fact that it has yielded no result      confirms the ineffectiveness of any alleged remedy.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced before the Commission on 15 December 1993 and registered on 7 January 1994.        On 5 April 1994 the Commission decided to communicate the application to the Turkish Government who were invited to submit their observations on its admissibility and merits before 8 July 1994. At the Government's request, this time-limit was subsequently extended until 8 August 1994.        By letter of 6 September 1994 the Commission's Secretary pointed out to the Government that the period for the submission of the Government's observations had expired long ago and that no extension of that time-limit had been requested. It was added that the application was being considered for inclusion in the list of cases for examination by the Commission at its October or November session.        No observations have been submitted by the Turkish Government.   THE LAW        The applicant complains of violations of Articles 2, 3, 5, 6, 8, 13, 14 and 18 (Art. 2, 3, 5, 6, 8, 13, 14, 18) of the Convention and Article 1 of the First Protocol in connection with a raid by security forces on the applicant's village, in the course of which the applicant's house was burned down.        The Government, which have been informed that the application was considered for inclusion in the agenda of the Commission at its present session, have submitted no observations on the admissibility or merits of the application.        It is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations. The Commission considers that the same principle should be applied where, as in the present case, the respondent Government have not submitted any observations at all.        It follows that the application cannot be rejected on the ground that the domestic remedies have not been exhausted.        Moreover, the Commission is of the opinion that the application raises important questions of fact and law which cannot be resolved at the stage of the admissibility but require an examination on the merits. The application cannot therefore be considered manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for inadmissibility has been established.   For these reasons, the Commission, unanimously,   DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                     (C.A. NØRGAARD)