CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 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. 23818/94                       by Muharrem ERGI                       against Turkey        The European Commission of Human Rights sitting in private on 2 March 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  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.    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 29 March 1994 by Muharrem ERGI against Turkey and registered on 7 April 1994 under file No. 23818/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Kurdish origin, was born in 1954 and lives at Incirliova, Aydin. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England. She complains to the Commission on behalf of her deceased sister, Havva Ergi, aged 22, and her sister's two year old daughter.        The facts as submitted by the applicant may be summarised as follows.        On 29 September 1993, at around 21.00, State security forces and village guards from Ziyaret village surrounded the applicant's village Gisgis in Ergani District, Diyarbakir Province, South East Turkey. A week earlier, one of the two persons in the village who worked for the State had been killed by the PKK. The other person who worked for the State had moved from the applicant's village to Ziyaret village (a protectors' village), which is five kilometres away, under the protection of the Ziyaret village guards one day before the incident. On the day of the incident, the soldiers were located on the southern side of the village. The village guards were located on the northern side of the village. First, one or two shots were fired from the northern side, then, there were volleys of firing at the village from the southern side. The shooting lasted for about one hour and consisted of the indiscriminate bombardment of civilian houses. It led to the loss of the life of the applicant's sister, Havva.        The applicant's house was in the middle of the village. At the time of the incident, her father and her deceased sister were sleeping on the balcony, on the upper part of the house. As soon as the firing started, her sister and her father came inside the house for shelter, but her sister went out on the veranda to collect something. She was hit in her head by a bullet when she was on the threshold and died immediately.        On the following morning, the applicant, with her uncle, went to Ergani Gendarme Commander and informed him about the incident in their village during which her sister had been killed. The Commander was surprised to learn that only one person had died and stated that at least twenty people should have died. The applicant's uncle told the Commander that he would apply to the Public Prosecutor. But the Commander told them to go back home and said that he would himself inform the Public Prosecutor.        Towards noon, the Public Prosecutor, a doctor and some soldiers came to the applicant's house and an autopsy was carried out. The finding was that a bullet had entered her sister's brain. While the autopsy was being undertaken inside the applicant's house, the villagers asked the soldiers why they were suffering such persecution. The answer of a non-commissioned officer was that, if the villagers accepted to become village guards, the persecution would stop and the reason why they shot at the village was that they saw terrorists at its entrance and that the indiscriminate firing at the entire village was to be explained by the clumsiness of the troops. The doctor, after completing the autopsy, said nothing except presenting condolences. He also issued a burial certificate. The applicant and her family were not asked by the Public Prosecutor about their version of the circumstances of the shooting.        There has been no communication between the Public Prosecutor and the family since the day of the autopsy. She and her family remain in the dark as to the official view of the incident and do not know whether there has been any investigation or prosecution in regard to the shooting. She states that the village of 200 households has now been reduced to 20 families, the rest having abandoned their homes as a result of military incidents such as that which led to her sister's death.        The Government have supplied the following information.        A preliminary investigation into the death of the applicant's sister was commenced by the Public Prosecutor of the Ergani district. On 12 December 1993, the Public Prosecutor, considering that the matter fell outside his competence, transferred the file to the competent public prosecutor attached to the Diyarbakir State Security Court where the matter is still pending.   COMPLAINTS        The applicant complains of violations of Articles 2, 8, 14 and 18 of the Convention.        As to Article 2 she complains of the unlawful killing of her sister by soldiers which cannot be considered to have occurred as the result of the use of lethal force that was absolutely necessary for any of the purposes specified in paragraph 2 of Article 2.        As to Article 8 the applicant submits that the killing of her sister on the veranda of her home constitutes a direct interference with her family life and, in particular, deprives her sister's two year old child of her family life.        As to Article 14 she complains of discrimination on the grounds of race and/or ethnic origin in the enjoyment of rights guaranteed by Articles 2 and 8 of the Convention.        As to Article 18 she submits that the interferences in the exercise of the Convention rights were not designed to secure the ends permitted under the Convention.        The applicant relies on the arguments advanced in this regard in Application No 21893/93 Akduvar and others v. Turkey.        As to the exhaustion of domestic remedies, the applicant submits that neither herself nor the family members were interviewed and no actual inquiries have been instituted by the Public Prosecutor about the circumstances of the killing. She maintains that she is not required to pursue domestic remedies.   In her opinion, any alleged remedy is illusory, inadequate and ineffective because:        (a)    the military assault on the village was officially organised, planned and executed by agents of the State;        (b)    there is an administrative practice of not respecting   the rule in Article 13 of the Convention which requires the provision of effective domestic remedies;         (c)   whether or not there is an administrative practice, domestic remedies are ineffective in her case owing to the failure of the legal system to provide redress. Specifically, the applicant refers to the rule that no proceedings for compensation can succeed until there has been a prosecution brought by the authorities against the perpetrator of the unlawful attack.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 March 1994 and registered on 7 April 1994.        On 27 June 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 4 November 1994.        By letter of 4 November 1994, the Government requested that the case be adjourned pending the investigation before the public prosecutor attached to the Diyarbakir State Security Court.        On 3 December 1994, the Commission refused the requested adjournment and requested the Government to submit their observations before 23 January 1995.        By letter date 21 February 1995, 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 February session.        No observations have been submitted by the Turkish Government.   THE LAW        The applicant complains of violations of Articles 2, 8, 14 and 18 (Art. 2, 8, 14, 18) of the Convention in connection with the killing of her sister. These provisions of the Convention respectively ensure the right to life, the right to respect for private and family life and the home, the securement of Convention rights without discrimination and the application of permitted restrictions for prescribed Convention purposes.        The Government, who 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 and 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, pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention, 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 declaring it inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE without prejudging the      merits of the case.   Secretary to the Commission             President of the Commission        (H.C. KRÜGER)                            (C.A. NØRGAARD)