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. 23954/94                       by     1. Mehmet Emin AKDENIZ                             2. Sabri TUTUS                             3. Sabri AVAR                             4. Keles SIMSEK                             5. Seyithan ATALA                             6. Aydin DEMIR                             7. Kemal TAS                             8. Suleyman YAMUK                             9. Ramazan YERLIKAYA                       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 5 April 1994 by 1. Mehmet Emin AKDENIZ, 2. Sabri TUTUS, 3. Sabri AVAR, 4. Keles SIMSEK, 5. Seyithan ATALA, 6. Aydin DEMIR, 7. Kemal TAS , 8. Suleyman YAMUK, and 9. Ramazan YERLIKAYA, against Turkey and registered on 25 April 1994 under file No. 23954/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations and information submitted by the respondent      Government on 4 December 1994 and 25 January 1995 and the      information and observations in reply submitted by the applicants      on 13 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant, Mehmet Emin AKDENIZ, a Turkish citizen of Kurdish origin, was born in 1938 and resides at Kulp. He complains to the Commission on his own behalf and on behalf of his brother M. Salih AKDENIZ, aged 70, who was mayor of Inkaya, and his nephew Celil Aydodgu, aged 60.        The second applicant, Sabri TUTUS, a Turkish citizen of Kurdish origin, was born in 1976 and resides at Diyarbakir. He complains to the Commission on his own behalf and on behalf of his father Behcet TUTUS, aged 44.        The third applicant, Sabri AVAR, a Turkish citizen of Kurdish origin, was born in 1950 and resides at Mus. He complains to the Commission on his own behalf and on behalf of his son M. Serif AVAR, aged 24, and his brother Hasan AVAR, aged 42.        The fourth applicant, Keles SIMSEK, a Turkish citizen of Kurdish origin, was born in 1950 and resides at Mersin. He complains to the Commission on his own behalf and on behalf of his brother Bahri SIMSEK, aged 40.        The fifth applicant, Seyithan ATALA, a Turkish citizen of Kurdish origin, was born in 1970 and resides at Diyarbakir. He complains to the Commission on his own behalf and on behalf of his brother M. Sah ATALA, aged 24.        The sixth applicant Aydin DEMIR, a Turkish citizen of Kurdish origin, was born in 1968 and resides at Diyarbakir. He complains to the Commission on his own behalf and on behalf of his brother Turan DEMIR, aged 27.        The seventh applicant, Kemal TAS, a Turkish citizen of Kurdish origin, was born in 1939 and resides at Kulp. He complains to the Commission on his own behalf and on behalf of his son Umit TAS, aged 16.        The eighth applicant, Suleyman YAMUK, a Turkish citizen of Kurdish origin, was born in 1955 and resides at Mus. He complains to the Commission on his own behalf and on behalf of his elder brother Abdo YAMUK.        The ninth applicant, Ramazan YERLIKAYA, a Turkish citizen of Kurdish origin, was born in 1967 and resides at Mus. He complains to the Commission on his own behalf and on behalf of his brother Nusreddin YERLIKAYA.        The above-mentioned eleven persons on whose behalf the application is brought have all disappeared after they had been arrested and detained in the circumstances described below.        The applicants are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England.        The facts as submitted by the parties may be summarised as follows:   A.    The particular circumstances of the case        The applicants give the following account of events.        In October 1993, there was a military operation with 10.000- 15.000 soldiers and village guards in the Kulp-Mus-Bingöl triangle, Diyarbakir province, South East Turkey, which centred on the village of Alaca and surrounding hamlets. It is assumed that the military operation was directed at the search for both members and supporters of a PKK armed group. The operation included the destruction of the village of Alaca and its hamlets as well as the expulsion of its inhabitants, most of whom left for the city of Diyarbakir or the towns of Kulp and Mus. Witnesses state that military planes were involved and that bombs were dropped that killed livestock and started forest fires.        From 9 October 1993, a number of male villagers, possibly fifty, were arrested at different places and at different times and brought to a temporary open air detention site outside Gundik hamlet, Alaca village, Kulp district, Diyarbakir province. The eleven missing persons at issue in the present case were among those brought there. Several of the applicants or their relatives were also among those arrested and brought to the site, or they visited the camp later. They can all testify that the eleven persons now missing were held with their hands tied behind their backs by rope throughout their detention at the site. All the prisoners were interrogated continuously about their knowledge of terrorists.        After a period of about 10 days the bulk of those arrested were released. The eleven missing men, whose ages ranged from 16 to 70, were taken at different times by military helicopter from the temporary open detention camp to an unknown destination on or about 19 October 1993. The eleven missing persons have not been seen since.        The applicants in their search for information about their missing relatives have not received any explanation as to what happened to them. Despite the efforts of the applicants since the disappearance of their relatives nothing has been learned from the authorities about the whereabouts of the missing men.        The facts based on the statements of each of the applicants and witnesses are as follows :         The applicant Mehmet Emin Akdeniz was in Diyarbakir, while his brother M. Salih Akdeniz and his nephew Celil Aydogdu were taken into custody by soldiers who came to the Sen pastures for an operation. The applicant went to Kulp when he learned of the incident. He did not go to the village as he was afraid to be caught by the soldiers. When he learned of the disappearance of his brother with ten other people after they had been taken to an unknown place by helicopter, he went back to Diyarbakir and he submitted a petition to the prosecuting authority asking for his brother's whereabouts. The reply on 5 November 1993 was that his brother was not in custody. On 12 November 1993, the applicant applied to the chief prosecution at Bingöl but was informed that there was nothing in the records. The applicant went to a friend who works in Diyarbakir Gendarme Command and who is a close friend of a colonel, and requested him to ask for his brother. As a result of the questions his friend put to the colonel, they were informed that his brother was not in the hands of the soldiers. On 24 November 1993, the applicant went to Ankara and met the State Minister responsible for Human Rights, who telephoned to the State Emergency Regional Governorship, gave the names of the eleven people and asked about them. The answer of the governor was that those people were not at any of the units connected to him. Afterwards, the applicant submitted petitions to the State Minister, the Prime Minister and the Minister of the Interior, from whom no reply was received. After his return to Diyarbakir, he and the relatives of the other missing men met the Assistant State of Emergency Regional Governor and submitted a petition to him on 30 November 1993. No reply to that petition has been received. On 14 December 1993, he and another relative applied to the prosecution at the State Security Court at Kayseri on behalf of four of the missing men without result.        The applicant Sabri Tutus states that, on 9 October 1993, his father Behcet Tutus was arrested together with his uncle Selahattin Tutus. His father had 20.000.000 Turkish Liras cash on him when he was arrested. His uncle was released after three days during which he had been held in the detention camp in Alaca village. His father remained in detention, and according to his uncle's statements, his father's money and a bank book were taken by a First Lieutenant. His father was taken to an unknown place after he had been held ten days in custody.        The applicant Sabri Avar was informed about the operation, but he was afraid to go to the village. He went there after ten days and learned from the villagers that, on 9 October 1993, his brother and his son had been taken into custody with some other people as a result of the operation. They were held for about ten days in the village where villagers brought them food. Eleven of them were taken to an unknown place by helicopter. On 22 November 1993, he addressed a petition to the chief prosecution at Kulp and on 27 December 1993, to the Kulp Governorship, but without result.        The applicant Keles Simsek, who has lived in Mersin for years, was not in the village during the incident. After having had a phone call from a relative from Mus informing him about the operation and the burning of the village, he came to Kulp, where he learned that his brother was in custody. When he went to the village five or six days after his brother had been arrested, he saw that the village had been burnt down. He learned that his brother was being held and got permission to see him. The prisoners were being held in an open space, and their hands were not bound while he was there. They said to the applicant, "when someone comes to see us they untie our hands, and when they go, they tie them up again". He was able to speak to his brother for about three hours. His brother told him that when they were first taken into custody in the village they were tortured. The applicant applied to the State Security Chief Prosecution in Diyarbakir on 12 December 1993 and then was told that they had no information about his brother.        The applicant Seyithan Atala states that, on 9 October 1993, his brother M. Sah Atala was taken into custody as a result of an operation carried out in the region, in which about 15.000 soldiers took part. Since the applicant was in Diyarbakir during the incident, he had the information from the villagers who told him that his brother had been taken to an unknown place at the end of the operation. While his brother was in custody, his family brought him food and clothing and talked to him. He applied to the Kulp State Prosecutor, to the District Governor, to the Diyarbakir State Security Court Prosecution, all without any result. The Kulp District Governor told him that the operation had been directed by Brigadier General Yavuz Pasa, and the orders had been given directly by the Chief of General Staff Dogan Gures. He sent the applicant to a captain, a Gendarme Commander, who told him that he did not know anything. The applicant believes that he has used all the legal channels in Turkey.        The applicant Aydin Demir was at Mus when, on 9 October 1993, his elder brother Turan Demir was taken into custody and the whole village was burnt. When he returned to the village after three days he learned about the incident and he was informed that his family had brought food and cigarettes to his brother during nine days when his brother had been held in custody. On the ninth day, his mother had seen a helicopter which took his brother and the other ten people away. He states that he applied to the Kulp Gendarme Command, the Diyarbakir State Security Court Chief Prosecutor, the Diyarbakir Governorship, the State of Emergency Regional Governorship and Kayseri, Bolu and Bingöl Gendarme Commands, but no information was received. Hüsnü Demir, father of the applicant, made a written petition to the prosecution at the Diyarbakir State Security Court concerning the disappearances on 17 December 1993 and was orally informed that no records had been discovered to the effect that Turan Demir and the ten others were in custody.        The applicant Kemal Tas states that, some time before the operation in Alaca village, his son Umit had gone to Kulp with 7 million Turkish liras to pay a tobacco loan, and that he was taken into custody at Kulp by the police because of this money found on him. The applicant's son Mehmet Tahir brought food to Umit when he was in custody at Kulp. Once when Mehmet Tahir again went to give food to Umit, he was told that Umit had been released. But he has not been seen since. The applicant learned that the police had handed him over to soldiers. During the operation, he was brought to Alaca village. The applicant applied to the Security authorities and the District Governor, but neither of them admitted that they held his brother in custody.        The applicant Suleyman Yamuk was in Mus at the time of the incident. He came to the village five days after his brother had been detained. The village was being set on fire at that time. The soldiers arrested the applicant and took him by helicopter to Mus where he was held in custody for seven days. After his release, he tried to find his brother who had been arrested by the soldiers on 9 October 1993 and had been held in the village for some time until he was taken to an unknown destination by helicopter. He was unable to find any trace of his brother. He applied on 21 October 1993 to the State prosecution at Bingöl without result.        The applicant Ramazan Yerlikaya and his brother Nusreddin were arrested on the same day but in different places and at different times. The applicant was taken to his village and was held there bound by soldiers for nine days. From there he was taken to Mus Security Directorate, where he was released after eight days. His other brothers Abdulrahim and Medeni Yerlikaya and his relative Ali Yerlikaya were taken into custody together with his brother Nusreddin in Alaca village from where his brother Nusreddin was taken to an unknown place by helicopter. Medeni and Ali were released with the others after nine days.        According to the witness statement of Ali Yerlikaya relating to the eleven missing men, about 30 soldiers came to his house at 09.00 on the day of the incident. The soldiers searched the house and, then, took him away. Later, they brought Bahri Simsek, M. Sah Atala and Umit Tas to join him. On the second day, Nusreddin Yerlikaya, Hasan Avar and Abdo Yamuk were also brought there. They were asked whether they had seen any terrorists and whether they knew where they were. After they had answered that they had not seen any, their hands were bound. On the third day he and others were put in a helicopter which departed for Gundik hamlet. There they were held in an open space with their hands tied. On the following day, Abdo Yamuk was taken away from the others to another place from where three shots were heard. Abdo Yamuk was brought back to the others two days later. He had been shot in his right foot which was bandaged. Afterwards, he was put in a helicopter and taken to the forest around Kayalisu opposite the Gundik hamlet where, one day earlier, Nusreddin Yerlikaya and Behcet Tutus had been sent. The following day, Umit Tas was taken to the Sen pasture. Two days later, Ali Yerlikaya was released. He was given his identity card and told to return to his village, but not to stay there. The houses and the possessions had been burnt.        According to the witness statement of Abdurrahman Yerlikaya relating to the eleven missing men, he was taken into custody during the operation which was carried out in his region by about 15.000 soldiers. He was taken to Piric hamlet. After being held there for three days, he was taken with his brothers Medeni and Nusreddin Yerlikaya, Ali Yerlikaya, Bahri Simsek, M. Sah Atala, Umit Tas, Hasan Avar and Abdo Yamuk to Gundik hamlet by helicopter. They were asked whether or not they had seen the terrorists. They met Mehmet Salih Akdeniz, Behcet Tutus, M. Serif Avar, Turan Demir and Celil Aydogdu, who were held in an open space with their hands bound, at the place where they were brought. Abdo Yamuk was taken away from the others, afterwards three gunshots were heard, and two days later he was seen with his right leg bandaged. First, Nusreddin Yerlikaya and Behcet Tutus were taken by helicopter to the forested area near Kayalisu. Later, Abdo Yamuk and on the following day Umit were taken there. Two days later he, Ali and Medeni were given their identity cards and were released and told to go back to their village but then to leave it immediately.        According to the witness statement of Selahattin Tutus relating to the custody of Behcet Tutus, he and his brother Behcet Tutus were coming back from Mus where they had gone to   get money for animals which they had sold. They were stopped by ten soldiers at the entrance of the village and arrested. They were brought to a place where there were more soldiers together with two people in masks. These two people and soldiers in uniforms pointed to Behcet after looking at their identity cards. The soldiers tied the hands of Behcet Tutus under the order of the First Sergeant, and started to beat him with sticks and fists. In the meantime they were saying "show us where the terrorists are". Behcet said that he did not know anybody. Behcet was beaten for about two hours. They were held in the village with 49 people, of whom eleven were bound like Behcet. The hands of the others were free. During that night, the men whose hands were not bound were told to go to the houses in the village but to come back the following morning. Those whose hands were bound were kept in the open air. This continued for two days, and the eleven men were fed out of the hands of the soldiers. When the soldiers untied the hands of Behcet so as to permit him to go to the toilet, he attempted to give the 20.000.000 Turkish liras to Selahattin. A soldier saw the money and told the First Sergeant about it. The First Sergeant took the money and put it into his pocket. On the third day, 32 people, including the witness, were brought out of Kulp to the Mus area by helicopter. They were held there two days without having any food and water. Then they were released except six of them who were released three days later. When they arrived at their village, the village had been burnt.        According to the witness statement of Mehmet Ilbey relating to the eleven missing men, he was resident at Gurnik hamlet, Alaca village, at the time of the incident. On 13 October 1993, there was an identity check at the entrance of the village by the soldiers. The soldiers took Mehmet Ilbey past a man with a cloth mask over his face. The masked man, with his walkie-talkie, said, "Commander, I have not seen this man". Then, he was taken to the place where about 50 villagers were held together. Eleven of them were M. Salih Akdeniz, Celil Aydogdu, Behcet Tutus, Turan Demir, Hasan Avar, M. Serif Avar, M. Sah Atala, Bahri Simsek, Abdo Yamuk, Nusreddin Yerlikaya and Umit Tas. Their hands were tied, whereas the hands of the others were free. On the third day, he was released but told to leave the area. He was also told that they were going to burn the houses.        The applicants appealed to Amnesty International through the Human Rights Association. Amnesty international appealed to the Turkish Government and, in April 1994, published a report about the missing men.        The respondent Government state as follows.        No operation was carried out in the Kulp-Alaca region from 9 October 1993. The eleven persons alleged to be missing were not taken into custody or detained. The inhabitants of the villages of Alaca and inkaya have fled from their homes under the intimidation of the PKK.   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 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 subject some-one 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).        In general, in respect of criminal 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 complaint of Mehmet Emin AKDENIZ concerns the disappearance of his brother and nephew following their arrest by military forces in the hamlet of Inkaya, Kulp district in Diyarbakir province on 9 October 1993 and their detention at Gundik hamlet, Alaca village, for at least ten days and, afterwards, their transportation by military helicopter to an unknown place.        The complaint of Sabri TUTUS concerns the disappearance of his father following his arrest at Alaca village on 9 October 1993 and his detention at Gundik hamlet, Alaca village, for ten days and, afterwards, his transportation by military helicopter along with Nusrettin Yerlikaya to the forest around the village of Kayalisu, Mus.        The complaint of Sabri AVAR concerns the disappearance of his son and his brother following the arrest by security forces of both men in Alaca village on 9 October 1993 and their detention for ten days at Gundik hamlet, Alaca village, and, afterwards, their transportation to an unknown place.        The complaint of Keles SIMSEK concerns the disappearance of his brother following his arrest by security forces in Alaca village, and, afterwards, his transportation to an unknown place.        The complaint of Seyithan ATALA concerns the disappearance of his brother following his arrest by security forces on 9 October 1993 and his detention for ten days and, afterwards, his transportation by military helicopter to an unknown place.        The complaint of Aydin DEMIR concerns the disappearance of his brother following his arrest by security forces on 9 October 1993 and his detention at Gundik hamlet, Alaca village, for ten days and, afterwards, his transportation by military helicopter to an unknown place.        The complaint of Kemal TAS concerns the disappearance of his son following his transfer from police to military custody on 9 October 1993 and his detention for ten days at Gundik hamlet, Alaca village, from where Umit Tas, together with Ali Yerlikaya, was removed by a First Lieutenant to the Sen pasture.        The complaint of Suleyman YAMUK concerns the disappearance of his brother following his arrest at Alaca village by security forces on 9 October 1993 and his detention at Gundik hamlet, Alaca village, for ten days and, afterwards, his transportation by military helicopter to the forested area surrounding the village of Kayalisu opposite the hamlet of Gundik.        The complaint of Ramazan YERLIKAYA concerns the disappearance of his brother following his arrest by security forces on 9 October 1993 and his detention at Gundik hamlet, Alaca village, for ten days and, afterwards, his transportation by military helicopter along with Behcet Tutus to the forested area at Kayalisu.        All of the applicants allege violations of Articles 2, 3, 5, 13 and 14 of the Convention.        As to Article 2, the applicants submit that the circumstances of the disappearances of the eleven missing persons may mean that they have been killed arbitrarily in violation of Article 2 of the Convention.        As to Article 3, the applicants state that the missing persons are the victims of torture by reason of their subjection to the experience of arbitrary removal from their homes and families and the suffering which that entails for each one of them. The applicants in their own right are, it is submitted, also victims of violations of Article 3 in that they have been deliberately subjected to continuous suffering, anguish and pain arising from the disappearances of their relatives and from the State's refusal to offer any explanation of these disappearances.        As to Article 5, the applicants, on behalf of the missing persons, claim that their detention and their enforced disappearances represent a direct violation of their right to liberty and security of person.        As to Article 13, the applicants state that there is a clear breach of the duty to provide remedies under that Article, it being impossible to discover what has happened to eleven detained citizens six months after the time when they were last seen.        As to Article 14, the applicants refer to an administrative practice of discrimination on grounds of ethnic origin and complain of violations of that Article in conjunction with Articles 2, 3 and 5.        The applicants also refer to Article 1 of the Declaration on the Protection of All Persons from Enforced Disappearance adopted by United Nations General Assembly resolution 47/133 of 18 December 1992.        As to the exhaustion of domestic remedies, the applicants submit that no remedies are adequate and effective with respect to their complaints because they have petitioned and appealed to the authorities, civil and military, without any result.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 April 1994 and registered on   25 April 1994.        On 27 June 1994, 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 4 December 1994 after one extension in the time-limit. The Government provided further information on 25 January 1995. The applicants submitted observations in reply on 13 February 1995.   THE LAW        The applicants complain of the taking into custody, detention and disappearances of 11 men (who are members of their respective families). They invoke Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on inhuman and degrading treatment), Article 5 (Art. 5) (right to liberty and security of person), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches) and Article 14 (Art. 14) (prohibition on discrimination).        Exhaustion of domestic remedies        The Government submit that the applicants have 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.        The Government contend that the applicants have not instituted any legal proceedings. They refer to the possibility of administrative action pursuant to Article 125 of the Constitution and to Law 2935 of the State of Emergency and Decree 430. They state that the applicants could have pursued a criminal complaint against the police or military authorities pursuant to Articles 151, 152, 153 and 448 of the Code of Criminal Procedure.        The applicants submit that they have brought their complaints to the attention of the authorities including the Public Prosecutor and the State Security Court and that no action has been taken. In light of the outright denial by the security forces that their relatives have been taken into custody or removed, they submit that any further action on their part would be futile. They refer to the negligible rate of prosecution of members of the security forces for human rights abuses in South-East Turkey.        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 notes that in the present case the applicants have made numerous approaches to the authorities, judicial, civil, administrative and military, in relation to their missing relatives. It notes in particular that Mehmet Akdeniz made a petition to the Diyarbakir Public Prosecutor and to the Chief Prosecutor in Bingöl about the disappearance of his brother; the relatives of all eleven missing men presented their statements and a petition to the Assistant State of Emergency Regional Governor whose office stated that they would investigate; that Keles Simsek petitioned the Chief Public Prosecutor of the Diyarbakir State Security Court on 12 December 1993 as did Aydin Demir and Seyithan Atala; that Sabri Avar petitioned the chief prosecution at Kulp; that Suleyman Yamuk petitioned the state prosecution at Bingöl; and that Mehmet Akdeniz and another relative petitioned the Chief Prosecutor at the State Security Court at Kayseri on behalf of four of the missing persons. The reply of the prosecution at the State Security Court at Diyarbakir to the petition of Hüsnü Demir indicated that it was known that eleven persons were claimed to have been taken away.        The Commission is satisfied that in the circumstances of this case the applicants can be regarded as having brought their complaints before relevant and competent authorities and that accordingly they are not required under Article 26 (Art. 26) of the Convention to pursue any other legal remedy in this regard (cf. Nos. 16311/90, 16312/90 and 16313/90; N.H., G.H. and R.A. v. Turkey, Dec. 11.10.91, unpublished and No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75).        The Commission concludes that the applicants may therefore be said to have complied with the domestic remedies' rule laid down in Article 26 (Art. 26) of the Convention and, consequently, the application cannot be rejected under Article 27 para. 3 (Art. 27-3).        As regards the merits        The Government deny that any operation was carried out in the area from 9 October 1993 or that any of the eleven men were taken into custody or detained. They submit that the allegations of the applicants are vague, unsubstantiated and of dubious credibility. They further submit that the villages of Alaca and Inkaya have been abandoned by the villagers under the intimidation of the PKK.        The applicants maintain their account of events, which they state is supported by detailed statements of events and include, inter alia, names and descriptions of members of the security services involved and identifies the units and commanders.        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)