CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 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. 24561/94                        by Abdullah ALTUN                        against Turkey        The European Commission of Human Rights sitting in private on 11 September 1995, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                C.L. ROZAKIS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN             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 30 June 1994 by Abdullah ALTUN against Turkey and registered on 7 July 1994 under file No. 24561/94;        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      20 February 1995 and the observations in reply submitted by the      applicant on 15 May 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Kurdish origin, was born in 1933 and lives at Diyarbakir. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at the University of Essex.        The facts of the present case, which are in dispute between the parties, may be summarised as follows.        The applicant states that the following occurred.        Six houses in the applicant's village Akdoruk, including his house, were burned down by gendarmes. The applicant was not present in the village when the burning of his house took place. On his way home he met his wife who warned him not to return. She told him that their house had been burned down and that three of their oxen and one ton of tobacco had also been destroyed. His wife had tried to save household goods from the fire but she had been prevented by the gendarmes who had hit her with the butt of their rifles and had thrown their possessions back into the blazing house.        Later the applicant saw the gendarmes around the village and he believes that they were from Kulp District Gendarme Command which was stationed about four kilometres from the village.        After two days the applicant and his family moved to rented accommodation in Diyarbakir. He was subsequently informed that the gendarmes had returned to the village several days after the six houses had been destroyed and that on this occasion they had burned down the rest of the village.        In February 1994, some 20 days after moving to Diyarbakir, the applicant went to Kulp and lodged a petition with the Kulp Domestic Judge's Office (Sulh Hakimligi) seeking determination of damages for his claim to compensation. In the statement he made before the judge the applicant said that his village had been burned down and that he had suffered damage. He did not say that the Gendarmerie had been responsible. Nor did the judge ask who had burned down the village. The judge then dismissed the applicant and the others who had also lodged petitions.        The applicant later learned that their petitions had been transmitted to the Kulp Gendarmerie whose officers the applicant considers as having carried out the destruction of his house and property. He has also learnt that since then members of the Gendarmerie have been constantly asking for him. He is however too frightened to go to the Gendarmerie headquarters because two other villagers who had petitioned at the same time as he, had been called to the Kulp Gendarmerie and had been beaten very severely. The Gendarmerie asked them nothing about the application for compensation. According to the applicant, the Gendarmerie refused to record or process his fellow villagers' petitions which had been forwarded to them.        In his initial application, the applicant submits that the burning of the six houses occurred on 3 January 1994, which corresponds to the Kurdistan Human Rights Project's records of villages burnt that month. However, documents submitted by the Government appear to suggest that the event under investigation took place on 13 November 1993. It is submitted on behalf of the applicant that he is over 60 years of age and that Kurdish peasants do not have an exact sense of time. At present further clarification of the date is being sought.        The respondent Government state the following.        The public prosecutor of the Kulp district commenced a preliminary investigation into the incident under file no. 1993/159. On 22 August 1994, he issued a decision of no jurisdiction and the file was transferred to the Kulp District Administrative Board under the special procedure for the prosecution of public officers, where it is still pending investigation.        A letter of 23 January 1995 from the Kulp Justice Penal Court, annexed to the Government's observations, states that there is no record of the applicant having made an application for redress in relation to the burning of his house.   COMPLAINTS        The applicant complains of violations of Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1.        As to Article 3 the applicant states that the destruction of his village, including his home and possessions, and the assaults on his wife represent a form of collective punishment and manifest and deliberate infliction of inhuman and degrading treatment. Moreover, the destruction was discriminatory on grounds of ethnic origin or status as it was directed against a member of a national minority.        As to Article 5 the applicant refers to a breach of his right to the exercise of liberty and the enjoyment of security of person. He has been deprived of his freedom of movement and liberty and security of person by arbitrary expulsion from his village through a procedure not sanctioned by Article 5 para. 1, and the expulsion was effected by means of a procedure not prescribed by law.        As to Article 6 the applicant complains of having been denied any effective procedure to challenge or resist the deprivation of his freedom to reside in his own home and to pursue his livelihood as a farmer, or to receive compensation for his deprivation of possessions.        As to Article 8 the applicant refers to a violation of his right to private life, his home and his family life. He complains of his arbitrary expulsion from the village and of the destruction of his home. He points out that the expulsion did not pursue a legitimate aim under para. 2 of Article 8.        As to Article 13 he alleges that there is no independent national authority before which his complaints could be brought with any prospect of success.        As to Article 14 the applicant alleges that he has been discriminated against on the ground of his Kurdish origin in the enjoyment of his rights under Articles 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.        As to Article 18 he refers to the destruction of his home and livestock, his forced abandonment of his village, home and livelihood for purposes incompatible with the Convention. He submits that he was arbitrarily forced to leave his property as a punishment because he is a Kurdish civilian and because the Government is engaged in a violent conflict with armed Kurdish groups. The Government's intention is to intimidate the applicant and fellow villagers from providing support or sympathy to the armed opposition forces.        As to Article 1 of Protocol No. 1, the applicant refers to the destruction of his house, animals and tobacco crop.        The applicant maintains that there is no requirement that he pursue alleged domestic remedies.        According to him, any alleged remedy is illusory, inadequate and ineffective because:   a)    the actions of which he complains were officially executed by agents of the State, namely gendarmes;   b)    there is an administrative practice of non-respect for 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)    whether or not there is an administrative practice, the situation in South-East 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 30 June 1994 and registered on 7 July 1994.        On 11 October 1994 the Commission decided to communicate the application to the Turkish Government who were invited to submit their observations on its admissibility and merits before 4 January 1995.        By letter of 27 January 1995 the Commission's Secretary pointed out to the Government that the period for the submission of the Government's observations had expired and that no extension of that time-limit had been requested. It was added that the application was being considered for inclusion in the list of cases for examination by the Commission at its February session.        Observations were submitted by the Turkish Government on 20 February 1995.        On 2 March 1995 the Commission decided to adjourn examination of the admissibility and to invite the applicant's representatives to respond to the Government's observations before 24 April 1995.        Following an extension of this time-limit the applicant submitted observations in reply on 15 May 1995.   THE LAW        The applicant alleges that a raid was carried out by the security forces on his village, in the course of which his house and possessions were destroyed. He invokes 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 home), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches), Article 14 (Art. 14) (the 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) (the right to peaceful enjoyment of possessions).        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. They contend that the applicant has neither applied for indemnity nor complained to the competent judicial authorities and they point out that there is a pending investigation before the Kulp District Administrative Board.        The applicant maintains that there is no requirement that he pursue domestic remedies. He contends that there is no role for him in the present stages of the investigation pending before the District Administrative Board. In any event, since the applicant has claimed that there is an administrative practice of violation of Article 13 (Art. 13) of the Convention and has provided supporting evidence for such a practice, he is not, in his view, required to await the outcome of the criminal investigation process before complaining to the Commission.        With regard to the Government's assertion that he did not take any legal action in order to seek compensation for the destruction of his possessions, the applicant repeats the detailed account given in his original application to the effect that he did do so.        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 the Turkish authorities tolerating abuses of human rights of the kind alleged by the applicant, because it agrees with the applicant that it has not been established that he had at his disposal adequate remedies under the state of emergency to deal effectively with his complaints.        The Commission refers to its findings in Application No. 21893/93, Akdivar and others v. Turkey (Dec. 19.10.94) which concerned similar allegations by the applicants of destruction of their village and forcible expulsion. In that case, the Commission noted that it was a known fact 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 had 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.        While the Government refer to the pending investigation by the District Administrative Board, the Commission notes that the alleged events seem to have occurred in November 1993 and the investigation has not yet been concluded. The Commission is not satisfied in view of the delays involved that this inquiry can be considered as furnishing an effective remedy for the purposes of Article 26 (Art. 26) of the Convention. 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.        Six months time-limit        The Commission has examined whether the applicant has complied with the requirement imposed by Article 26 (Art. 26) of the Convention that an application must be introduced within six months of the final decision taken in respect of the complaints.        In the present case, the Commission observes that whereas in his original application the applicant stated that his house was burnt down on 3 January 1994, it appears that the incident under investigation by the public prosecutor of Kulp district and the Kulp District Administrative Board occurred on 13 November 1993.   The Commission found above that the applicant is not required to pursue domestic remedies in light of their apparent ineffectiveness. In these circumstances, the question arises whether the complaints insofar as they relate to specific acts carried out on 13 November 1993 have been introduced out of time, given that the application was introduced on 30 June 1993.        The case-law of the Commission establishes that where no domestic remedy is available, the six months period runs from the act complained of (see eg.   No. 10530/83, Dec. 16.5.85, D.R. 42 p. 171). However, special considerations could apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (cf. No. 23654/94, Dec. 15.5.95, Laçin v. Turkey, D.R. 81-B).        In this respect the Commission notes that the applicant states that he took steps to bring his complaints to the attention of the authorities. He claims to have lodged a petition with the Kulp Domestic Judge's Office in February 1994 in order to obtain compensation. The applicant submits that this petition has been transmitted to the Kulp Gendarmerie, whose officers the applicant holds responsible for the destruction of his house and property. Furthermore, according to the applicant, the Kulp Gendarmerie has refused to record or process the petitions of two fellow villagers lodged at the same time as his own petition with the Kulp Domestic Judge's Office and equally transmitted to the Kulp Gendarmerie. The applicant further states that he is too frightened to go to the Kulp Gendarmerie headquarters because of the ill-treatment allegedly meted out to the two other villagers who had been called there.        The Commission observes furthermore that an investigation into the incident was initiated in 1993 by the public prosecutor of Kulp district, which, following the transfer of the file to the Kulp District Administrative Board in August 1994, has so far not yielded any results.         Given that these circumstances do not disclose any indication of a delay on the part of the applicant in introducing his application once it must have become apparent that no redress for his complaints was forthcoming, the Commission considers that the relevant date for the purposes of the six months time limit should not be considered to be a date earlier than February 1994.        It follows that the applicant's complaints have been introduced within the six months time-limit imposed by Article 26 (Art. 26) of the Convention.        As to the substance of the applicant's complaints        The Government submit that they are unable to submit any observations on the merits of the case at the present time.        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 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, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission              President of the Commission          (H.C. KRÜGER)                            (S. TRECHSEL)