CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 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. 24490/94                       by Ahmet SARLI                       against Turkey        The European Commission of Human Rights sitting in private on 28 November 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                  K. HERNDL              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 23 June 1994 by Ahmet SARLI against Turkey and registered on 28 June 1994 under file No. 24490/94;   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      27 February 1995 and the observations in reply submitted by the      applicant on 15 May 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin, born in 1927 and residing at Diyarbakir. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England. The applicant states that he brings the application in his own name and on behalf of his son Ramazan Sarli and his daughter Cemile Sarli.   A.    Particular circumstances of the case        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.        In November 1993, the mayor of Ulusoy village, Ali ilban, was summoned by Tatvan District Gendarme Unit Commander Dursun (surname unknown). He was told that the PKK were burning village schools and that the Government would hold the villagers responsible if the village school was destroyed. The villagers had previously been threatened in order to persuade them to become "protectors". There were no "protectors" in the village. Nor was assistance rendered to the PKK. The villagers sought to avoid collaboration with either "side". Following the return of the mayor to the village, the villagers feared that the village school might be attacked by the "protectors" of Sak village, 30 kilometres away. They decided that three to four people would guard the village school after dark. Four people were on watch in the night of 24 December 1993, i.e. Yakup Çaçan, Naif Eriç, Kazim Aydin and Rasit Tarçin.        At about 02.00 hours in the morning of 25 December 1993, these four men saw a military vehicle approach the school. As the vehicle came within a few metres, they saw by the light of their torches that the vehicle was a small dark green (military green) van. A team of six men was aboard it. The four guards called on the vehicle to stop but it did not do so. The guards then fired one or two shots. Fire was returned, after which the vehicle withdrew. The villagers came out of their houses and discovered what had happened. As they were about to return to their homes, the same persons came back. The guards were afraid and went home. About half an hour later, a convoy of special teams and gendarmes arrived at the village. They went to the home of ismet Orakçi, at the entrance of the village, and asked for the applicant's house. Taking ismet Orakçi with them, they went to the applicant's house.        They knocked on the applicant's door at around 03.00 hours. He asked who they were and was told that they were gendarmes. He opened the door immediately. The gendarmes asked where his daughter Cemile was. The applicant said that she was not at home. The applicant's son Ramazan said that she was knitting with the daughter of Abdullah Milyas, an acquaintance who lived 500 metres away. Taking Ramazan with them, but leaving ismet Orakçi, the gendarmes left, having warned the applicant and the others in his home that they would be shot if they went outside.        Apparently the gendarmes and Ramazan went to the Milyas home where Abdullah Milyas opened the door. The gendarmes then took away Cemile, who was there, Ramazan and Abdullah Milyas. The applicant, his family and ismet Orakçi went outside when it became light. Other villagers were outside. There were still gendarmes in and around the village. The applicant learnt from Abdullah Milyas that the three of them had been taken to the village school in the night and that Abdullah had been released one hour later.        On the morning of 25 December 1993, Captain Dursun, the commander of the gendarmes who had come to the village, collected the villagers together and asked if there were guerrillas in the village. Not only did they say there were not, but First Sergeant Yavuz, Commander of the Gendarme Station of neighbouring Yelkenli village, confirmed it. Towards noon, whilst there were still gendarmes in the village, the First Sergeant went to the house of the applicant's son Ramazan and asked Ramazan's wife where Ramazan and Cemile were. She replied that the gendarmes had taken them away. First Sergeant Yavuz denied that.        The applicant and his family left the village a few days after the incident because they feared for their lives. The applicant submits that the villagers ismet Orakçi and Abdullah Milyas were too afraid of endangering their lives to provide statements to support the application.        The applicant claims he has made repeated applications to Tatvan and Bitlis State Prosecuting Authorities. On 1 February 1994 the Tatvan public prosecutor replied to an application filed on the applicant's behalf by his brother on 31 January 1994. The reply states that the applicant's son and daughter were not taken away by the security forces but by the "Takosin" group who, it claims, are members of the PKK. It furthermore mentions that the public prosecutor took a decision of lack of jurisdiction on 11 January 1994 and that the case was subsequently transferred to the Head of the Prosecution's office at the Diyarbakir State Security Court.        The applicant does not know on what basis the public prosecutor reached the conclusion that his children were taken away by the PKK. He knows of no investigations into what happened. He maintains that his children were taken away by gendarmes and that the State has made no effort to find them.        The respondent Government submit the following account of the facts, based on statements made on 24 and 25 December 1993 by the school guards Yakup Çaçan, Naif Eriç, Kazim Aydin and Rasit Tarçin, the village mayor Ali ilban, the villager ismet Orakçi and the mother of Cemile and Ramazan.        The four men guarding the school were on watch on the night of 23 December 1993 when, around 23.30 hours, they saw a taxi approach and a group of terrorists. An exchange of fire followed, lasting about 10 to 15 minutes after which the terrorists left. Woken up by the sounds of guns, the villagers came out to protect the school. A little later the terrorists came back and proceeded to fire at the school for approximately 20 minutes, upon which they left. At around 03.00 hours gendarme units arrived at the village and during 30 minutes there was more exchange of fire.        After the second shooting, six terrorists dressed in Kurdish so called pesh merga outfits came to the house of ismet Orakçi and told him to take them to the house of Ahmet Sarli. Once there, the terrorists took Ramazan and Cemile and moved out of the village. The school guards and the mayor were only informed of this the following morning.        Following the lodging of a written complaint by the applicant's brother to the Bitlis public prosecutor on 31 January 1994, the complaint was transferred to the Tatvan public prosecutor's office the same day. The Tatvan public prosecutor commenced a preliminary investigation. On 1 February 1994 the applicant was informed in writing that his children had been abducted by the PKK and that the file had been transferred to the Diyarbakir State Security Court on 11 (sic) January 1994 due to a lack of jurisdiction of the Tatvan public prosecutor.   B.    Relevant domestic law and practice        The Turkish Criminal Code makes abduction or kidnapping a criminal offence (Section 499). Section 499 para. 2 concerns the crime of kidnapping for political reasons. Pursuant to Section 4 of the Prevention of Terrorism Act, the crime described in Section 499 para. 2 of the Criminal Code is considered a terrorist crime.        In general, in respect of criminal offences, complaints may be lodged, pursuant to Sections 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 criminal offences 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 alleged author of a criminal offence 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.        As regards the prosecution of terrorist crimes, only the State Security Courts have jurisdiction pursuant to the Prevention of Terrorism Act.   COMPLAINTS        The applicant complains of violations of Articles 2, 3, 5, 13, 14 and 18 of the Convention.        As to Article 2, the applicant states, in relation to the disappearance of his children, that unacknowledged detention in the hands of the State in South-East Turkey is life-threatening, on account of the administrative practice of torture and the high incidence of deaths in custody, some apparently as a result of torture. He also refers to the lack of any effective system for ensuring protection of the right to life and to the inadequate protection of the right to life in domestic law.        As to Article 3, he states, with regard to his children, that their "disappearance" is a form of torture and, in relation to himself, that his inability to discover what has happened to his children is a violation of Article 3. He also refers to Article 3 on account of discrimination on grounds of race and ethnic or national origin.        As to Article 5, he refers to his children not being brought before a judicial authority within a reasonable time and not being able to bring proceedings to determine the lawfulness of their detention.        As to Article 13, he complains of the lack of any independent national authority before which his complaints can be brought with any prospect of success.        As to Article 14, he complains of violations of his and his children's rights under Articles 2, 3 and 5 on account of an administrative practice of discrimination on grounds of race and ethnic or national origin.        As to Article 18, he submits that the interferences in the exercise of Convention rights are not designed to secure the ends permitted under the Convention.        As regards exhaustion of domestic remedies, the applicant maintains that there is no requirement that he pursue such remedies. In his view, any alleged remedy is illusory, inadequate and ineffective because:   (a) the abduction of his son and daughter was officially organised, planned and executed by 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,   (d) alternatively, the applicant has done everything he can do to exhaust domestic remedies by submitting petitions to the prosecutors of Tatvan and Bitlis; the nature of the response received on 1 February 1994 and the lack of any basis for the assertions it contains confirms the ineffectiveness of any alleged remedy.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 June 1994 and registered on 28 June 1994.        On 11 October 1994 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the case.        The Government's written observations were submitted on 27 February 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 May 1995, also after an extension of the time-limit.   THE LAW        The applicant complains of the arrest, detention and disappearance of his son and his daughter. He invokes 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 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.        Exhaustion of domestic remedies        The Government submit that the applicant has 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.        In this respect the Government refer to the pending investigation by the public prosecutor of the Diyarbakir State Security Court.        The applicant maintains that there is no requirement that he pursue domestic remedies. Any notionally available remedy is rendered illusory and ineffective by an administrative practice of non-respect for the requirement under the Convention of the provision of effective domestic remedies.        The applicant refers in particular to the fact that the file was transferred to the Diyarbakir State Security Court which would indicate that the authorities assume his children were abducted by terrorists and that they have excluded the possibility of State involvement. Since he cannot challenge the transfer of the file, the applicant contends that he is unable to obtain a judicial determination as to the possible responsibility of the State.        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 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.        While the Government refer to the pending investigation by the public prosecutor of the Diyarbakir State Security Court, the Commission notes that the alleged incident occurred on either 24 or 25 December 1993 and the investigation has not yet been concluded. The Commission is not satisfied in view of the delays and the serious nature of the alleged crime 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.        As to the substance of the applicant's complaints        The Government submit that the applicant's account of the facts is contradicted by the statements of witnesses, including that of his wife.        The applicant maintains his account of events and contends that, since the Government have not provided statements from Abdullah Milyas or from any of the gendarmes present at the material time, the witness statements submitted by the Government are not conclusive. Moreover, in the applicant's view, most of these witness statements do not exclude that his children were abducted in the manner he described.        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)