CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 janvier 1995

.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. 22275/93                       by ismet GÜNDEM                       against Turkey         The European Commission of Human Rights sitting in private on 9 January 1995, the following members being present:              MM.    H. DANELIUS, Acting President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  E. KONSTANTINOV                  G. RESS              Mr.    M. DE SALVIA, Deputy 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 7 July 1993 by ismet GÜNDEM against Turkey and registered on 19 July 1993 under file No. 22275/93;         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       10 March 1994 and the observations in reply submitted by the       applicant on 4 May 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Turkish citizen of Kurdish origin, was born in 1955 and lives at Diyarbakir. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at the University of Essex.         The facts as submitted by the parties may be summarised as follows.   A.     The particular circumstances of the case         The applicant claims that the following events occurred.         On 7 January 1993, at about 10.30h, the Turkish security forces, consisting of approximately 200 soldiers and 150 village protectors carried out the first of two raids, involving violence against property and persons in the hamlet of Kaniya Meheme, which is situated in Sarierik village near Diyarbakir.         The applicant was present in the village during the attack on 7 January 1993. The village had 15 households in 14 of which were members of his extended family. During the raid, the security forces gathered the villagers in one place. They beat some of the villagers, verbally abused and swore at others, including children. They used heavy weapons to shoot at the houses. They broke down doors and windows and they "mixed up" all the winter provisions, so that they became inedible. They also destroyed household goods in a number of houses. Before they left, they stated that if they found the villagers there the second time they came they would burn the village.         On 13 February 1993, the security forces and village protectors returned to the village at about 05.00h. The forces attacked the village, firing their guns into the air. The soldiers did not enter the village but surrounded it. About 50 village protectors entered the village and fired at the houses for about 20 minutes. Women and children were taken from the houses which were then destroyed. Some of the women and children were beaten with fists and rifle butts. Threats were made that if the villagers did not leave the village within 24 hours, the village would be demolished.         Most of the houses were damaged and rendered unusable. The applicant's house was damaged with the doors and windows broken and everything inside destroyed.         In these circumstances, the applicant and the other villagers fled to Diyarbakir.         It is claimed by the applicant that over 1000 villages have been evacuated in a similar way and that many villages have been destroyed since 1990. Over 1 million people have been displaced without alternative accommodation or livelihood and without compensation.         The respondent Government acknowledge that Turkish security forces were in operation in the village of Sarierik near Diyarbakir between 7 and 13 February 1993. They state that the operations conducted at that time were aimed at impeding the activities of the militants from the PKK (Workers' Party of Kurdistan - an armed separatist movement), maintaining order and protecting the villagers and their property.         The applicant did not make any complaint to the authorities concerning the destruction of his home and property and the expulsion from the village, alleging a fear of reprisal. Following however the communication of the applicant's complaints to the Government by the the Commission in October 1993, the public prosecutor of Hasro commenced an investigation into the events in question.   B.     Relevant domestic law and practice         Civil and administrative procedures         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."         The Government assert that 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.         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."         Proceedings before the administrative courts are in writing.         Any illegal act by civil servants, be it a crime or tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts and the administrative courts. Damage caused by terrorist violence may be compensated out of the Social Help and Solidarity Fund.         Criminal procedures         The Turkish Criminal Code makes it a criminal offence:   -      to deprive someone unlawfully of his or her liberty (Article 179       generally, Article 181 in respect of civil servants),   -      to oblige someone through force or threats to commit or not to       commit an act (Article 188),   -      to issue threats (Article 191),   -      to make an unlawful search of someone's home (Articles 193 and       194),   -      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.).         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.         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).         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 local council decisions may be appealed to the State Council; a refusal to prosecute is subject to an automatic appeal of this kind.         Emergency measures         Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.         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.         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.         Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas 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.         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 an individual to claim indemnity from       the State for damages suffered by them without justification."   COMPLAINTS         The applicant complains of violations of Articles 3, 5, 6, 8, 13 and 18 of the Convention and Article 1 of the First Protocol.         He states that, for fear of reprisals, he has been unable to seek to challenge or complain to the authorities about the measures taken against him. Furthermore, he considers that any domestic remedies are illusory, inadequate and ineffective.         As to the precise nature of his complaints and the reasons why he considers that there are no effective remedies, he refers to arguments presented in two other applications to the Commission (Nos. 21893/93 and 21895/93).   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 7 July 1993 and registered on   19 July 1993.         On   11 October 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 10 March 1994 after one extension in the time-limit and the applicant's observations in reply were   submitted on 4 May 1994. The applicant submitted further information on 14 September 1994.   THE LAW         The applicant alleges that on 7 January 1993 and 13 February 1993 State security forces launched a gun attack on his village. He claims that the soldiers and village protectors shot at the villagers, damaged their homes, destroying the contents, and forced them to evacuate the village. The applicant invokes Article 3 (Art. 3) of the Convention (the prohibition on inhuman and degrading treatment), Article 5 (Art. 5) (the right to liberty and security of person),   Article 6 (Art. 6) (the right of access to court), Article 8 (Art. 8) (the right to respect for family life and the home), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 18 (Art. 18) (the prohibition on using authorised Convention restrictions for ulterior purposes), as well as Article 1 of Protocol No. 1 (P1-1) to the Convention (the right to property).         The Government argue that the application is inadmissible for the following reasons:         i. the applicant failed to exhaust domestic remedies;         ii.   the application is an abuse of the right of petition.         Exhaustion of domestic remedies         The Government submit that the applicant has failed to comply with the requirement under Article 26 (Art. 26) of the Convention to exhaust domestic remedies before lodging an application with the Commission.   They contend that the applicant had a number of remedies at his disposal which he did not try.         In respect of damage alleged to have been caused by the State, the Government submit that the applicant had the possibility of introducing an administrative action before the administrative courts for compensation in accordance with Article 125 of the Turkish Constitution. Claims for compensation could also have been lodged in the ordinary civil courts.         The Government also submit also that the acts alleged by the applicant have no lawful authority under emergency legislation or decrees and would constitute punishable criminal offences under both criminal and military law, in respect of which complaints could be lodged with the competent civil and military authorities.         The applicant maintains that there is no requirement that he pursue domestic remedies. Any purported remedy is illusory, inadequate and ineffective since, inter alia, the operation in question in this case was officially organised, planned and executed by the agents of the State. None of the remedies suggested by the Government could be regarded as effective, in the applicant's view, because the scale of destruction of villages, as well as the expulsion and creation of internal refugees, is so great in South-East Turkey that this must be considered high-level Government policy - an administrative practice - in regard to which all remedies are theoretical and irrelevant.         Further, the applicant submits that, whether or not there is an administrative practice, domestic remedies are ineffective in this case having regard, inter alia, to the situation in South-East Turkey which is such that potential applicants have a well-founded fear of the consequences; the lack of genuine investigations by public prosecutors and other competent authorities; the absence of any cases showing the payment of adequate compensation to villagers for the destruction of their homes and villages, or for their expulsion; and the lack of any prosecutions against members of the security forces for the alleged offences connected with the destruction of villages and forcible expulsions.         The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach. It is furthermore established that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p.18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).         The Commission does not deem it necessary to determine whether there exists an administrative practice on the part of Turkish authorities tolerating abuses of human rights of the kind alleged by the applicant, because it agrees with the applicant that it has not been established that he had at his disposal adequate remedies under the state of emergency to deal effectively with his complaints.         The Commission refers to its findings in Application No. 21893/93, Akduvar and others v. Turkey (Dec. 19.10.94) which concerned similar allegations by the applicants of destruction of their village and forcible expulsion. In that case, the Commission noted that it was a known fact there has been destruction of villages in South- East Turkey with many people displaced as a result. While the Government had outlined a general scheme of remedies that would normally be available for complaints against the security forces, the Commission found it significant that, although the destruction of houses and property has been a frequent occurrence in South-East Turkey, the Government had not provided a single example of compensation being awarded to villagers for damage comparable to that suffered by the applicants. Nor had relevant examples been given of successful prosecutions against members of the security forces for the destruction of villages and the expulsion of villagers.         The Commission considered that it seemed unlikely that such prosecutions could follow from acts committed pursuant to the orders of the Regional Governor under the state of emergency to effect the permanent or temporary evacuation of villages, to impose residence prohibitions or to enforce the transfer of people to other areas. It further had regard to the vulnerability of dispossessed applicants, under pressure from both the security forces and the terrorist activities of the PKK and held that it could not be said at this stage that their fear of reprisal if they complained about acts of the security forces was wholly without foundation.         The Commission concluded that in the absence of clear examples that the remedies put forward by the Government would be effective in the circumstances of the case, the applicants were absolved from the obligation to pursue them.         In the present case, the Government have not provided any additional information which might lead the Commission to depart from the above conclusions.   This application cannot, therefore, be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.         Abuse of the right of petition         The Government maintain that the application, being devoid of any sound judicial basis, has been lodged for the purposes of political propaganda against the Turkish Government.   Accordingly the application constitutes an abuse of the right of petition which discredits the legal nature of the Convention control mechanism.         The applicant rejects the Government's submission, contending that his complaints relate to alleged violations of the Convention, which have not formally been brought before the local instances for fear of reprisal.         The Commission considers that the Government's argument could only be accepted if it were clear that the application was based on untrue facts. However, this is far from clear at the present stage of the proceedings, and it is therefore impossible to reject the application on this ground.         As regards the merits         The Government submit that, while security forces were in operation in the village between 7 and 13 February 1993, the operations conducted at that time were aimed at impeding the activities of the militants from the PKK, maintaining order and protecting the villagers and their property. The Government have not otherwise commented on the substance of the applicant's complaints which it states are now under investigation by the public prosecutor following the communication by the Commission of the application.         The applicant maintains his account of events.         The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. 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.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Deputy Secretary to the Commission         Acting President of the Commission            (M. DE SALVIA)                             (H. DANELIUS)