CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 avril 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. 22309/93                       by Ahmet (son of Mehmet), Ahmet (son of Sabri)                       and Bedrettin ISIYOK                       against Turkey        The European Commission of Human Rights sitting in private on 3 April 1995, the following members being present:              MM.    C. A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY              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 9 July 1993 by Ahmet (son of Mehmet), Ahmet (son of Sabri) and Bedrettin ISIYOK against Turkey and registered on 23 July 1993 under file No. 22309/93; 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      22 April 1994 and 31 January 1995 and the information and      observations in reply submitted by the applicants on      12 April 1994 and 6 June 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, Turkish nationals, of Kurdish origin, are members of the same family living in the Diyarbakir province in south-eastern Turkey. The first two applicants are cousins and the third applicant is the nephew of the first applicant. They were born in 1950, 1951 and 1974 respectively. The second applicant's son, Burhan, acts in this case on behalf of his father.        The applicants are 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 applicants claims that the following events occurred.        Three paternal cousins lived in the hamlet of Çekirdek. They were Abdulhamit (also known as Hamit), Ahmet, who is the son of Mehmet and is the first applicant, and Ahmet, who is the son of Sabri and is the second applicant. Abdulhamit was married to Halime, the sister of Ahmet, son of Mehmet. The third applicant is their son. He acts in his own right and on behalf of his parents and siblings.        At around 9.00 on 12 January 1993, three military helicopters were seen over the village. The village was bombed from the helicopters until 11.00. At around 12.30, one of the helicopters was seen again, followed by two jets. At this point, the first applicant took his four children into a corner of the house and was about to go and check the animals in their fold. Before he could go outside, there was a great explosion and his home collapsed. The bombing lasted for about one and a half hours in the first applicant's recollection. When it was over and the first applicant realised that he could not get out of the ruins, he called for villagers to come and rescue him. He realised that three of his ribs were broken and that he was bruised all over. Later he saw that his sister Halime, her husband and three of their children had been killed. Five houses had been destroyed and others had become uninhabitable.        As a result of the bombing, the first applicant had his ribs broken and was bruised. His family home was destroyed, the family's animals (two cows, one calf, eighteen goats and one ox) were killed and the feedstock for the animals was destroyed by burning. The second applicant's family home was destroyed and the family's animals (four cows and sixteen goats/two cows and eighteen goats in latest statement) were killed. The third applicant's parents and three of his siblings were killed in the bombing, their family home was destroyed and the family's animals (five cows, five sheep and twenty-five goats) were killed.        In official statements on the incident, the State authorities claimed that the PKK (Kurdish Workers' Party - an armed separatist movement) was responsible for the killing, which the applicants find untrue since the PKK has neither planes nor helicopters. The gendarmes station commander claimed that a rock had rolled into a house and destroyed it. No prosecutor or judge visited the scene of the incident. The mayor completed a report on the basis of the statement of the gendarmes station commander. The applicants submitted a complaint to the mayor, asking for autopsies and for an investigation to be carried out. The villagers applied orally to the governor, who simply refuted what they said. The applicants applied to the prosecuting authorities and the State of Emergency Governorship, but they received no reply and they have been unable to get the governor to accept a written application. The second applicant's son states that, since they contacted the Diyarbakir branch of the Human Rights Association with a view to submitting a case to the European Commission of Human Rights, they have received threatening telephone calls.        As a result of the destruction of their homes, members of the families of the second and the third applicants have been forced to live apart.        The respondent Government state the following.        On 20 January 1993, the third applicant forwarded his allegations to the district governor of Kulp, requesting an investigation into the incident. Upon this, the public prosecutor of Kulp district instituted an investigation into the complaints. The public prosecutor opened a file also to enquire into allegations concerning the injuries of the first applicant and another person. On 19 0ctober 1993 and 14 September 1994 respectively, the public prosecutor issued decisions that he lacked jurisdiction. The files were transferred to the District Administrative Board under the special procedure for the prosecution of public officers, where they are still pending investigation. The Government refer to the difficulties caused to the judicial process due to the terrorist activities, stating that in September 1992 a judge and public prosecutor were killed by terrorists.   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.).        The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants). As regards unlawful killings, there are provisions dealing with unintentional homicide (Articles 452,459), intentional homicide (Article 448) and murder (Article 450).        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 pursuant to Article 165 of the Code of Criminal Procedure.        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 applicants complain 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, they refer to the fact that the parents and three siblings of the third applicant were killed and that the lives of the first and the second applicants were endangered without lawful excuse. They also claim a violation of Article 2 on account 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, they refer to an inhuman and degrading practice of clearing villages, a form of collective punishment, and to discrimination on grounds of race and ethnic origin.        As to Article 5, they complain of complete lack of security of the person.        As to Article 6, they complain of the impossibility of challenging the deprivation of property before it took place, which they see as a denial of access to court, and of the failure to initiate proceedings before an independent and impartial tribunal against those responsible for the killings and life-threatening attacks and destruction of property, as a result of which they cannot bring civil proceedings arising out of the killings, attacks and destruction.        As to Article 8, they refer to the destruction of their homes and to the destruction of family life in the case of the second and the third applicants, since the members of their families have to live apart as a result of the destruction of their homes.        As to Article 13, they complain of the lack of any independent national authority before which their complaints can be brought with any prospect of success.        As to Article 14, they complain of discrimination in the enjoyment of their rights under Articles 2, 3, 5, 6 and 8 of the Convention and Article 1 of the First Protocol. They refer to an administrative practice of discrimination on account of race or ethnic origin.        As to Article 18, they claim that the interferences in the exercise of the Convention rights are not designed to secure the ends permitted under the Convention.        As to Article 1 of the First Protocol, they complain of the destruction of their possessions and means of livelihood.        As regards the exhaustion of domestic remedies, the applicants point out that they have tried to have the incident investigated. They have requested autopsies and they have petitioned the mayor and the governor but to no avail. They further claim that any alleged remedy is illusory, inadequate and ineffective because:        (a) the operation which led to the killings and destruction 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,        (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, and        (d) whether or not there is an administrative practice, the situation in the south-east of Turkey is such that potential applicants have a well-founded fear of the consequences, should they invoke alleged remedies.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 July 1993 and registered on   23 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 22 April 1994 after two extensions in the time-limit. The applicants supplied further information on 12 April 1994 and their observations in reply were submitted on 6 June 1994.        On 8 December 1994, the Commission refused the Government's request for the case to be adjourned pending the investigation of the public prosecutor and requested the Government to submit any further observations which they wished to make before 23 January 1995.        The Government submitted further information on 31 January 1995.   THE LAW        The applicants allege that on 12 January 1993 attack by helicopter and jet aircraft was made on their village during which members of the third applicant's family died, the first applicant was injured and the applicants' homes, property and livestock were destroyed.   The applicants invoke Article 2 (Art. 2) of the Convention (the right to life), Article 3 (Art. 3) (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), Article 14 (Art. 14) (the prohibition against discrimination) 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's complaints are of an abstract, or "actio popularis" nature;        ii. the application is an abuse of the right of petition;        iii. the applicant failed to exhaust domestic remedies.        Complaints abstract and by way of "actio popularis"        The Government point to what they allege is the abstract and "actio popularis" nature of this application.        The Commission notes that the applicants' complaints refer to specific allegations of injury and damage suffered by them in violation of their rights. The applicants' submissions as to alleged administrative practices do not thereby render the complaints abstract and general. The Commission finds accordingly that the complaints fall within its competence under Article 25 para. 1 (Art. 25-1) of the Convention.        Abuse of the right of petition        The Government submit that this application forms part of an organised campaign being pursued for the purposes of political progaganda against the Turkish Government. This, they submit, constitutes an abusive exercise of the right of application to the Commission.        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.        Exhaustion of domestic remedies        The Government argue that the application is inadmissible since the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.        The Government pointed in their first response to the applicants' complaints that there were ongoing investigations by the public prosecutor of Kulp into the complaints arising out of the alleged incident which occurred on 12 January 1993. Following the decisions by the public prosecutor that he lacked jurisdiction taken on 19 October 1993 and 14 September 1994, the Government now submit that the matters are under investigation by the District Administrative Board.        In respect of damage or loss of life alleged to have been caused by the State or its agents during the course of the operations of the security forces, the Government submit that the applicants have the possibility of introducing an action against the administration for compensation in accordance with, inter alia, Article 8 of Decree 430 of 16 December 1990.        The applicants maintain that there is no requirement that they 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. They refer to an administrative practice of unlawful killings and destruction of property and of not respecting the requirement under the Convention of the provision of effective domestic remedies.        Further, the applicants submit 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 if they pursue remedies; the lack of genuine investigations by public prosecutors and other competent authorities; the absence of any successful cases against the Regional Governor for compensation under the State of Emergency Law; an official attitude of legal unaccountability towards the security forces; 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.        In respect of the investigations by the public prosecutor of Kulp referred to by the Government, the applicants submit that   there is no information as to how the alleged pending investigation into the deaths is proceeding.        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 applicants, because it agrees with the applicants that it has not been established that they had at their disposal adequate remedies under the state of emergency to deal effectively with their complaints.        As regards the allegations with regard to the destruction of the applicants' homes and property, the Commission refers to its findings in Application No. 21893/93, Akduvar and others v. Turkey (Dec. 19.10.94) which concerned complaints of the destruction of homes and forcible expulsion. In that case, the Commission noted that it was a known fact that 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.        While the Government now refers to the pending investigation before the District Administrative Board following the decisions of the public prosecutor that he had no jurisdiction, the Commission notes that the incident has been under investigation since about the end of January 1993. In view of the delays involved, more than two years since the incident took place, the Commission is not satisfied that this inquiry can be considered as furnishing an effective remedy for the purposes of Article 26 (Art. 26) of the Convention.        The Commission finds therefore that in the circumstances of this case the applicants are not required to pursue any further legal remedy concerning their complaints (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75).        The Commission concludes that this application cannot be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.        As regards the merits        The Government reject the applicants' allegations that there is an administrative practice to violate human rights in conjunction with discrimination against Turkish citizens of Kurdish origin and refer to the terrorist assault on the State by the PKK in face of which the Government is striving to maintain security and order. The Government have not otherwise commented on the substance of the applicants' complaints which it states are under investigation by the District Administrative Board.        The applicants maintain their 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.   Secretary to the Commission              President of the Commission         (H.C. KRÜGER)                            (C.A. NØRGAARD)