CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 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. 23656/94                       by     1. Ahmet AYDER                             2. Yusuf LALEALP                             3. Nadir DOMAN                             4. Sevket BiÇER                             5. Zeydin EKMEKÇi                       against Turkey        The European Commission of Human Rights sitting in private on 15 May 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  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                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN              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 20 April 1994 by Ahmet AYDER, Yusuf LALEALP, Nadir DOMAN, Sevket BiÇER and Zeydin EKMEKÇi against Turkey and registered on 9 May 1994 under file No. 23656/94;        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 5 December 1994 and 25 January 1995 and the      observations in reply submitted by the applicant on      21 February 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant, Ahmet Ayder, is a Turkish national of Kurdish origin, born in 1940 and resident at Diyarbakir.        The second applicant, Yusuf Lalealp, is a Turkish national of Kurdish origin, born in 1934 and resident at Lice/Diyarbakir.        The third applicant, Nadir Doman, is a Turkish national of Kurdish origin, born in 1964 and resident at Diyarbakir.        The fourth applicant, Sevket Biçer, is a Turkish national of Kurdish origin, born in 1966 and resident at Diyarbakir.        The fifth applicant, Zeydin Ekmekçi, is a Turkish national of Kurdish origin, born in 1963 and resident at Diyarbakir.        All the applicants were living in the city of Lice.        The applicants state that they are applying on their own behalf and on behalf of their dependent family members. They are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at 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.        On 22 October 1993, at around 9h.15, the applicant Biçer was working in his vineyard about 2 kilometres from Lice when a military vehicle passed from the petrol station of Fevzi Çelik, 100 metres from the vineyard. There were many soldiers in uniform and two large guns on the vehicle. The applicant Biçer could not see what was happening in Lice but he assumed that something was about to happen. At exactly 9h.30 he heard gunshots coming from Lice.        Three of the other applicants, Ayder, Lalealp and Doman, had gone to the neighbourhood Saglik café, near their homes. Ayder went there at about 9h.00 and the other two at 7h.00. Just after 9h.00, gendarmes and police entered the café with truncheons and firearms and ordered people to go to their homes because "the terrorists had organised an attack on the Regiment Command". Lalealp had left the café by that time and was in the Kortik neighbourhood when that was surrounded by soldiers and police and they were told to go to their houses. The firing started at around 9h.30.   There were all kinds of weapon noises (helicopters, rockets, mortars, kalashnikovs etc.). It took Lalealp 25- 30 minutes to reach his home, keeping his head beneath the level of the walls.        The applicant Ayder took his children and his wife into the cellar of the shop adjoining his house. 25-30 other people gathered there too.        The applicant Lalealp, when he reached home, went with his wife and four children into the small barn adjoining his house, having put out their horse. One to two hours later, they were told by the soldiers to leave the barn. They did so. They heard the sound of a heavy weapon very close by. They saw that their house had been set on fire. There were innumerable armed, uniformed and plain-clothed soldiers and police about. When the Lalealp family appeared, the forces, without saying anything to them, pointed a wide bore weapon at the barn and fired. The barn began to burn furiously. The Lalealp family ran to the barn of the neighbourhood Mayor.        The applicant Doman also went into the small barn adjoining his house, accompanied by his family.        The applicants did not believe the explanation they had been given because soldiers, gendarmes and police would not have been all over the town if an armed clash had taken place. They would have gone into shelters or joined in the fighting because the Regiment Command was only a few hundred metres from the city centre. Furthermore, the PKK has never been known to launch attacks during the day. They attack at night and withdraw.        In the meantime, when the firing started, Biçer took refuge in a "göm" (a hole big enough for 10 people to shelter in and covered with sheet iron). He saw six helicopters, three of which were firing in the direction of Lice. They were of different kinds, including Cobra, Sikorsky and Apache helicopters. After the weapon was fired, he saw smoke rising from where it had landed.        On the same day, at around 11h.00, Ekmekçi went to the Lice garage in Diyarbakir to return home to Lice, together with his wife and two children. He was told that the Lice road was closed and that there was no way in. They tried to ring up their maternal aunt in Lice. They were not able to get through until 15h.00. Their aunt answered the telephone from the barn. The applicant Ekmekçi could hear the sound of weapons, gunfire, explosions and of helicopters over the telephone. Those in Lice said that all they could see were uniformed soldiers and police.        Those sheltering in Lice had to stay where they were on account of the firing until the following morning, 23 October at about 8h.00, when the firing stopped.        The applicant Biçer tried to leave the "göm" at 17h.00 on 22 October, whilst firing was continuing. He took 50-60 steps towards the petrol station when soldiers there fired in his direction. He returned to the "göm". He came out again at 4h.30 on 23 October and set off towards the petrol station. There were still sounds of firing from Lice. The soldiers fired at him. He went first to another "göm" and then back to his own. He tried to get to Lice at around 8h.00, when the firing died down. He saw that vehicles coming from Diyarbakir were being stopped and no one at all was being allowed into Lice. He returned to the "göm".        All those who had been sheltering in Lice commented on the overpowering smell of burning when they came out of their shelters. Uniformed soldiers and police were everywhere, pointing weapons at them.        From the front door of his house, the applicant Ayder could see five houses which had been burnt down. Someone who seemed to be a Regiment Commander pointed at Ayder's house and asked whose it was. He was holding an M-16 long-barrelled gun. Ayder said that it was his house. He was told to get his family out. He did so. The officer took something in the shape of a half metre long pipe, attached it to a weapon and fired at the house, which suddenly burst into flames.        All those who emerged from shelters in Lice were told to go to the open space in front of the Security Directorate. About 2.000 people were gradually gathered together there. They were made to wait for about four hours for the arrival of the Diyarbakir provincial governor at around 12h.00-12h.30. The provincial governor said that they were sheltering terrorists in their homes and that the attack was the work of those terrorists. If they saw any terrorists they were to telephone the authorities. A man of about 40-45 years old stood up and said that soldiers and police had caused the destruction. He was taken away and brought back a short time later, beaten up. The crowd was told to go to their homes. Some people whose houses had been burnt by the soldiers have not received tents or any other aid from the State. The people went to their homes and there was a curfew with immediate effect. The curfew lasted until 26 October.        On 26 October, the applicant Biçer saw that the road to Lice had been opened. He walked towards Lice. There was a barricade at the entrance to Lice but they were allowed through. In the town, there were sheep, goat, cow and donkey carcasses on the ground, swollen up like balloons. Wheat and straw was burning and smoke rose from burning houses. His own house and barn had been burnt, as had his Dutch cow. The same day, the applicant Biçer went with his family to the home of his brother-in-law in Diyarbakir. They are currently fourteen members living in a three-roomed house. The applicant has been unable to find work since moving to Diyarbakir. A few days later he returned to Lice and applied to the prosecutor for a determination of the damages. This procedure merely serves to establish what was destroyed when his house burnt down.        The applicant Ayder and his family left Lice in a minibus of the Turkey Electricity Foundation. They rent a three-roomed house in Diyarbakir. There are no wage earners in the family. They were only able to salvage a few bits of furniture. Ayder applied to the prosecutor for a determination of damage. Ayder states that the prosecutor said that he would not instigate any inquiry. He told the prosecutor that it was the soldiers and police who burnt his home, to which the prosecutor responded that he knew that already but that there was nothing he could do. The prosecutor said that he would send the damage determination report to Ankara.        The applicant Doman and his family went to Diyarbakir, to the home of a relative, where 25-30 people stayed for two days. Then they went to a house belonging to the applicant's father. There are no wage earners in the family. They applied to the prosecutor for a determination of damage.        The applicant Ekmekçi was still in Diyarbakir on 26 October when the curfew was lifted. He was joined there by his mother and sister. On 30 October, his wife went to Lice. They already knew that their house had been burnt down. A few days later she went back again and applied to the prosecutor for a determination of damage.        The applicant Lalealp did not have the financial means to leave Lice. The family stayed at the house of the Mayor for 20-25 days. They then settled in the house of his sister-in-law, who had left Lice. A month after the incident, he applied to the prosecutor for a determination of damage. He was told by Council workers to open a court case with the help of the Municipal Council. He did not do so because he thought that it would be without effect, since no one has been known to have achieved any results through any such application. He was not given a copy of the damage determination form. The applicant is too old to work and there is no work to be found in Lice, whose population has gone down by half since this incident. He receives help from relatives living outside Lice.        None of the applicants has received any compensation for the harm they were caused or the losses they suffered.        The accounts of the applicants are confirmed by the newspaper report from Özgür Gündem of 23 October 1993. In particular, all roads in and out of Lice were sealed off before and during the incident. People were ordered to close shops and businesses and to return home. The firing started before they had all had time to do so. Telephone connections were cut off at about 13h.30. Many workshops, homes and vehicles were destroyed. There were some reports of a guerilla counter- offensive after the firing had started, but the journalists were not able to confirm that. Guerilla sources were reported as stating that there had been no guerilla activity in Lice. Later reports in a number of newspapers referred to President Demirel stating that the Brigadier General Aydin was killed by a "stray bullet". Other accounts in the press varied, including the version that he had been killed in the mountains. Officially, the authorities stated that 13 people had died in the incident, while local people and some newspapers referred to a larger number of deaths and many injured apparently from burns.        According to the damage determination report by the public prosecutor of Lice given to the Human Rights Association in Lice, the following damage occurred:        - 214 shops were damaged, 168 completely;        - 18 official buildings were damaged (a municipal service      building, a depot, a municipal garage and two primary schools      completely destroyed, the district governor's lodgings, a      gendarmerie regional building, a commando battalion building and      police lodgings slightly damaged and the Government palace half-      damaged);        -400 houses were damaged, 297 completely.        The respondent Government give the following account.        On 22 November 1993, the PKK commenced an armed raid on Lice, targeting in particular Government buildings and military headquarters. The PKK used heavy weapons and artillery. During the attack, General Behtiyer Aydin was killed.   Damage to private property occurred mainly as the result of cross-fire between the PKK and security forces. No deliberate damage was carried out by security forces, which in fact tried to stop the PKK from harming the population and property.        Following the incident, the provincial governor distributed tents and the junior governor, having established the damage, proceeded to the necessary repairs.   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 applicants allege that they have been the victims of the following violations of the Convention:   Article 2   1.    A violation of Article 2 on account of the life-threatening attack to which they were subjected by agents of the State.   2.    Alternatively, a violation of Article 2 on account of the threat to life occasioned by gross recklessness on the parts of agents of the State, in violation of the State's obligation to protect their right to life.   3.    A violation of Article 2 on account of the lack of any effective system for ensuring protection of the right to life.   4.    A violation of Article 2 on account of the inadequate protection of the right to life in domestic law.   5.    A violation of Article 14 in conjunction with each head of claim under Article 2.   Article 3   6.    A violation of Article 3 on account of an inhuman and degrading treatment whilst firing was going on, in front of the Security Directorate and whilst they were subject to the curfew. This represents a form of collective punishment which is, in itself, in violation of Article 3.   7.    A violation of Article 14, in conjunction with Article 3.   8.    A violation of Article 3 on account of discrimination on grounds of race or ethnic origin.   Article 5   9.    A violation of Article 5 on account of complete lack of security of the person.   Article 6   10.   A violation of Article 6 on account of the impossibility of challenging the deprivation of property before it took place, which represents a denial of access to court for a determination of civil rights.   11.   A violation of Article 6 on account of the failure to initiate proceedings before an independent and impartial tribunal against those responsible for the life-threatening attacks and destruction of property, as a result of which they cannot bring civil proceedings out of the attack and destruction.   Article 8   12.   A violation of Article 8 on account of the destruction of the homes of the applicants.   Article 1 of Protocol 1   13.   A violation of Article 1 of Protocol 1 on account of the destruction of the applicants' homes and possessions.   Article 14   14.   A violation of Article 14, in conjunction with Articles 5, 6 and 8 of the Convention and Article 1 of Protocol 1 on account of an administrative practice of discrimination on grounds of race or ethnic origin.   Article 13   15.    A violation of Article 13 on account of the lack of any independent national authority before which these complaints can be brought with any prospect of success.   Article 18   16. A violation of Article 18 because the interferences in the exercise of the Convention rights are not designed to secure the ends permitted under the Convention.   As regards Article 26        The applicants maintain that there is no requirement that they pursue alleged domestic remedies. According to them, any alleged remedy is illusory, inadequate and ineffective because   a)    the operation which led to the threat of life and destruction in question in this case was officially organised, planned and executed by agents of the State;   b)    there is an administrative practice of not respecting the rule under 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 this case owing to the failure of the legal system to provide redress;   d)    alternatively, the applicants have done everything they can to exhaust domestic remedies by obtaining a determination of damage; the fact that none of them has received any compensation or assistance confirms the ineffectiveness of any alleged remedy.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 April 1994 and registered on 9 May 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 case.        The Government's observations were submitted on 5 December 1994 after one extension in the time-limit set for that purpose. The Government submitted supplementary observations on 25 January 1995. The applicant's observations in reply were submitted on 21 February 1995.   THE LAW        The applicants complain that the security forces carried out a life-threatening attack on their town during which their homes and property were burnt and destroyed. They invoke Article 2 (Art. 2) (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) (prohibition on discrimination) and Article 18 (Art. 18) (the prohibition on using authorised Convention restrictions for ulterior purposes) of the Convention, as well as Article 1 of Protocol No. 1 (P1-1) to the Convention (the right to property).        Exhaustion of domestic remedies        The Government argue that the application is inadmissible since the applicants have failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.        In respect of damage alleged to have been caused by the State or its agents, the Government submit that the applicants had the possibility of introducing an action for compensation before the civil or administrative courts relying, inter alia, on Article 125 of the Turkish Constitution or Article 8 of Decree 430 of 16 December 1990.        The Government also submit that alleged arson, destruction of property and threatening conduct are prohibited by the Criminal Code, in respect of which complaints could be lodged with the competent authorities, civil or military.        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 agents of the State and 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 should pursue remedies. In this context the applicants also allege a 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; 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. There is, in the applicants' view, an administrative practice of ineffective remedies.        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, Akdivar and others v. Turkey (Dec. 19.10.94) which concerned similar complaints of the destruction of homes and forcible expulsion. In that case, the Commission noted that it was a known fact that there had 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 like 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 in respect of remedies available for the destruction of homes and property in villages and towns.        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 submit that security forces were in operation in Lice on 22 October 1993 in response to an attack on the town by the PKK who were using heavy weapons and artillery. No deliberate damage was inflicted on the houses in the town by the soldiers.        The applicants maintain their account of events that the attack on the town was planned and carried out by the security forces alone, and that the PKK were not involved.        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)