CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1996

.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. 25704/94                       by Hamsa ÇIÇEK                       against Turkey        The European Commission of Human Rights sitting in private on 26 February 1996, 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                  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 8 November 1994 by Hamsa Çiçek against Turkey and registered on 17 November 1994 under file No. 25704/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 20 February 1995 to communicate the      application;   -     the observations submitted by the respondent Government on      16 June 1995 and the observations in reply submitted by the      applicant on 15 August 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Kurdish origin, was born in 1930 and lives in Dernek, Lice District, Diyarbakir province. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both university teachers at the University of Essex.        The facts as submitted by the parties may be summarised as follows:        The applicant states that the following occurred:        On the morning of 10 May 1994 at about 06.00 a.m., soldiers, connected with the Lice District Gendarme Command, raided the applicant's village. They drove close to the village and then had to proceed on foot because it had rained in the night and the village was muddy. There were over 100 soldiers.        Some of the soldiers went round each house, woke up the inhabitants and told them to assemble by the village mosque, bringing their identity cards with them. About 400 villagers gathered by the mosque. The soldiers took the identity cards of the male villagers and told the women to return home. The women took their children and returned home, leaving the men waiting by the mosque.        The applicant did not see what happened next but, according to the accounts of male villagers who were present, the men's ID cards were checked according to a list. Then the names were called out one by one, the ID cards were returned and the villagers were sent home. When the names of R. A., F. F., M. Ö., M. D. and Ali ihsan Çiçek (the applicant's son) were called out, their ID cards were not returned to them and they were told to leave the group and to wait on one side. The ID card of Tahsin Çiçek (another son of the applicant) was initially returned but he was immediately called back and sent to join the other five people.        The soldiers left, taking the six people into custody. Witnesses said that the soldiers took the six people in custody to Lice Regional Boarding School. It is alleged that Tahsin and Ali Ihsan Çiçek and R. A. were tortured there.        It appears that, on the second day of their custody, the soldiers separated Tahsin and Ali ihsan Çiçek from the others. They said to the others, "We have released those two, we are going to release you as well." On the following day, the other four people were released and they returned home. They were surprised not to find Tahsin and Ali ihsan Çiçek there because they had been told that they had also been released.        About 20 days following the taking of her sons into custody, the applicant went to speak to a villager who had been released from Lice Regional Boarding School, where she believed her sons had been detained. She spoke to him about his period in custody. He said that almost everyone in custody there suffered torture. She explained that her sons were in custody there and asked whether he had seen them. She described them. He said that two brothers had been in custody at the same time as he was and they were the right age. A short time after this, the applicant met another villager who had been released from custody at Lice Regional Boarding School about a month previously. She described her sons to him and asked whether or not he had seen them. He said that he had only seen Tahsin. Tahsin had been in a bad condition due to the torture he had suffered. Later, the villager had been taken with Tahsin to Lice District Gendarme Command but he had not seen him again.        The applicant has been told by witnesses that on 27 May 1994, Tahsin's son Çayan (i.e. her grandson) was taken away by security forces whilst he was sitting in the garden at the family home. Çayan is partially sighted; he cannot see at all at night and can only see about 1 metre in front of him in daylight.        The applicant has made many applications concerning her sons and grandson. She went to Lice District Gendarme Command on two occasions and asked about their whereabouts. She was told that neither they, the district governor nor the leader of the council could do anything. The applicant is elderly, lives in a village and cannot speak Turkish. This limits the enquiries which she can make. She got her daughter, Feride Çiçek, who lives in Diyarbakir, to submit verbal petitions to the Chief Prosecutor of the Diyarbakir State Security Court. Feride Çiçek did this on 20 July 1994. She was given a verbal reply to the effect that her brothers and nephew (i.e. the applicant's sons and grandson) were not in custody.        The respondent Government state the following:        No operation organised by the security forces took place in the village of Dernek on 10 May 1994. The applicant's sons Tahsin and Ali Ihsan Çiçek and her grandson Çayan were not taken into custody by the the Gendarmarie of the Lice District.   COMPLAINTS        The applicant complains of violations of Articles   2, 3, 5, 6, 8, 13, 14 and 18 of the Convention.        As to the Article 2 she alleges that the unacknowledged detention of her sons and grandson is life-threatening because there exists a high incidence of deaths in custody, some as a result of torture. She also complains of the lack of any effective state system for ensuring protection of the right to life.        As to Article 3 she refers to her inability to discover what has happened to her sons and grandson. She also complains of discrimination on grounds of ethnic origin.        As to Article 5 she refers to the unlawful detention of her sons and grandson, the failure to provide information as to the reasons for their detention, of her sons and grandson 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 she alleges that there is a lack of any independent national authority before which her complaints can be brought with any prospect of success.        As to Article 14 the applicant alleges that her sons and grandson have been discriminated against on the ground of their Kurdish origin in the enjoyment of their rights under Articles 2, 3, 5 and 13 of the Convention.        As to Article 18 she alleges that the interferences referred to above with the exercise of Convention rights are not designed to secure the ends permitted under the Convention.        The applicant maintains that there is no requirement that she pursue alleged domestic remedies.        According to her, any alleged remedy is illusory, inadequate and ineffective because:   a)    the detention of her sons and grandson was officially organised, planned and executed by agents of the Government;   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 and the refusal of the Government to admit that the security forces are holding the applicant's sons and grandson in detention;   d)    the applicant and her family have done everything possible to exhaust domestic remedies by making enquiries at the Lice District Gendarme Command and by submitting a petition to the Public Prosecutor of Diyarbakir.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 November 1994 and registered on 17 November 1994.        On 20 February 1995 the Commission decided to communicate the application to the Government and ask for written observations on the admissibility and merits of the application.        The Government's observations were submitted on 16 June 1995 after the expiry of the extension in the time-limit on 9 June 1995. The applicant's observations in reply were submitted on 15 August 1995. The Government were asked for a further clarification on a specific matter but did not answer within the time-limit.   THE LAW        The applicant complains of the taking into custody, the detention and the subsequent disappearance of her two sons and a grandson. She 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 Commission notes that the Government raised no objection as to non-exhaustion of domestic remedies.        It is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations.        It follows that the application cannot be rejected on the ground that the domestic remedies have not been exhausted.        As regards the merits        The Government deny that any operation organised by the security forces took place in the village of Dernek on 10 May 1994. They submit that the applicant's two sons and grandson were not taken into custody by the Gendarmerie of the Lice District. They cast doubt on the credibility of the applicant's allegations in that the applicant has not adduced any corroborative evidence to support them. They submit that the statements submitted to the Commission in support of the allegations were extracted or fabricated by extrajudicial means.        The applicant maintains her account of events which, she states, is supported by direct evidence and the information given by eyewitnesses. She refutes the Government's submission that her statements were extracted or fabricated.        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)                           (S. TRECHSEL)