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. 25754/94                       by Mehmet HARAN                       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 11 November 1994 by Mehmet Haran against Turkey and registered on 22 November 1994 under file No. 25754/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 27 February 1995 to communicate the      application;   -     the observations submitted by the respondent Government on      11 August 1995 and the observations in reply submitted by the      applicant on 4 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish national, is a farmer in the village of Agilli in Lice.   He submits the application in his own name and on behalf of his deceased son. He 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:   A.    The particular circumstances of the case        The applicant states that the following occurred:        The applicant used to live in the Çelebi hamlet of Agilli village in Lice. Some time ago the applicant's house, with other houses in the hamlet, was burned down by security forces.        The applicant then settled in Agilli village, near to his hamlet which had been destroyed, and his son Vahdettin Haran settled in Lice district.        On 12 May 1994 Vahdettin Haran had come to Agilli village in order to help prune the applicant's vines. During the day, gendarmes and soldiers arrived at the village and collected all the villagers together in the school grounds. They then started to burn the houses. The applicant heard soldiers saying: "We can only overcome terrorism by burning all the villages and driving the people away from the region."        At about 11 am, as houses were still being burned, the applicant heard the sound of gunshots coming from his vineyard. Because he was surrounded by gendarmes and soldiers, he could not go to look. It appeared that the whole area around the village was under the control of the gendarmes and soldiers.        The gendarmes and soldiers left later in the day. In the evening villagers who came from the direction of the vineyard said that the gendarmes had taken someone away with them and gone towards Lice. The applicant feared that this might have been Vahdettin Haran, but did not have the courage to go to the vineyard to look.        On the morning of the following day, 13 May 1994, the applicant sent his other children to the vineyard. When they arrived there, they found Vahdettin Haran's corpse.        Later on 13 May 1994, the applicant went to Lice and reported the killing to the Lice State Prosecutor. The State Prosecutor told the applicant that he would not be able to come to the village as it would be too dangerous for him, but that an autopsy would be made if the body could be brought to Lice.        The applicant took the body of Vahdettin Haran to Lice and an autopsy was carried out by the State Prosecutor. No information or official documents were given to the applicant.        Initially, the applicant and his friends were not even permitted to take the body away, but later officials from the State Prosecutor's office said that the applicant could collect the body, provided not more than two people came. The applicant arranged the burial of Vahdettin Haran at the village.        The respondent Government state as follows.        On 12 May 1994 an official autopsy was conducted on the body of Vahdettin Haran. The autopsy report indicated that the death was caused by bullet wounds.        On 6 June 1994 the Public Prosecutor of Lice initiated a preliminary investigation into the death of Vahdettin Haran. The investigation is still pending.   B.    Relevant domestic law and practice        The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).        For 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 authoritites. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding, pursuant to Article 148 of the Code of Criminal Procedure, whether a prosecution should be initiated.   COMPLAINTS        The applicant considers that there have been violations of Articles 2, 3, 6 and 14 of the Convention.        The applicant complains of a violation of Article 2 of the Convention on account of the intentional killing of his son by the security forces. He also alleges a violation of this provision on account of the inadequate protection of the right to life in domestic law.        The applicant complains of a violation of Article 3 of the Convention on account of the grief and torment amounting to inhuman and degrading treatment suffered by him as a result of the death of his son.        The applicant alleges a violation of Article 6 of the Convention on account of the failure to institute proceedings before a tribunal against those responsible for the killing of his son, as a result of which the applicant cannot bring civil proceedings arising out of these events.        The applicant also considers that there have been violations of Article 14 of the Convention in conjunction with Articles 2, 3 and 6 of the Convention, since only Turkish citizens of Kurdish origin are regularly exposed to violations of the Convention of the kind referred to.        The applicant's arguments about exhaustion of domestic remedies are as follows:        The applicant maintains that there is no requirement that he pursue alleged domestic remedies. Any alleged remedy is in his opinion illusory, inadequate and ineffective because:   a)    there is every reason to believe that the operation which led to the killings in question in this case were executed by agents of the State;   b)    there is strong evidence that such acts have been repeated, and that they have received official tolerance; in such circumstances, there is an administrative practice giving rise to a presumption that the local remedies are not effective;   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.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 November 1994 and registered on 22 November 1994.        On 27 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 11 August 1995 after one extension in the time-limit. The applicant's observations in reply were submitted on 4 October 1995.   THE LAW        The applicant alleges that his son was killed in circumstances for which the State is responsible. He invokes Article 2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on inhuman and degrading treatment), Article 6 (Art. 6) (the right of access to court) and Article 14 (Art. 14) (prohibition on discrimination) of the Convention.        Exhaustion of domestic remedies        The Government submit that the application is inadmissible since the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention before lodging an application with the Commission.        The Government point out that the preliminary investigation initiated by the Public Prosecutor of Lice into the killing of the applicant's son is still pending.        The applicant maintains that there is no requirement that he pursue domestic remedies. Any purported remedy is illusory, inadequate and ineffective since, inter alia, the killing of the applicant's son was planned and executed by agents of the State. He refers to an administrative practice of unlawful killings giving rise to a presumption that the local remedies are not effective.        The applicant further argues that, 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.        In respect of the investigation by the Public Prosecutor of Lice, the applicant submits that the Public Prosecutor has had adequate time to complete his investigation and that the file is simply being left open with no ongoing inquiries being conducted.        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. 11.5.89, D.R. 61, pp. 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 to deal effectively with his complaints.        The Commission notes that while the Government refers to the pending inquiry by the public prosecutor into the death of the applicant's son on 6 June 1994, almost one year and eight months have elapsed since the killing and the Commission has not been informed of any progress having been made in the investigation. In view of the delays involved and the serious nature of the crime, the Commission is not satisfied that this inquiry, in the prevailing circumstances, can be considered as furnishing an effective remedy for the purposes of Article 26 (Art. 26) of the Convention.        The Commission finds that in the circumstances of this case the applicant is not required to pursue any other legal remedy in addition to the public prosecutor's inquiry (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207). The Commission concludes that the applicant should be considered to have complied with the domestic remedies rule laid down in Article 26 (Art. 26) of the Convention. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.        As regards the merits        The Government have not presented any observations on the substance of the applicant's complaints beyond asserting that they are under investigation by the public prosecutor of Lice.        The applicant maintains his account of the events.        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)