CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 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. 24396/94                       by Besir TAS                       against Turkey        The European Commission of Human Rights sitting in private on 5 March 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER            Mrs.   G.H. THUNE            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 7 June 1994 by Besir TAS against Turkey and registered on 14 June 1994 under file No. 24396/94;        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      24 February 1995 and the observations in reply submitted by the      applicant on 3 May 1995;   -     the parties' oral submissions at the hearing on 17 January 1996;   -     the documents submitted by the respondent Government on      9 February 1996;   -     the comments in reply submitted by the applicant on      23 February 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin. He was born in 1943. He is represented before the Commission by Professor Kevin Boyle and Ms. Francoise Hampson, both teachers at the University of Essex.        The facts as submitted by the parties may be summarised as follows.        Particular circumstances of the case        The applicant gives the following account.        The applicant's son, Muhsin, had been living away from home for about two years. The applicant was told that his son had been apprehended on 14 October 1993, following a clash with police in the Cizre district of Sirnak province in which he had been injured in his legs.        The applicant was called to the Security Directorate of the town where he lives. He was asked the whereabouts of his son. He said that his son had gone to Diyarbakir to work, following his military service. The police told him that Muhsin had been apprehended after a clash.        On 17 October 1993, the applicant went to Cizre to enquire about his son. At Cizre he met the Prosecutor and submitted a petition. The Prosecutor told him that his son was under their custody and that he would be brought before a court. When he went to Cizre again 15 days later, the Prosecutor told him that the 15 day police custody period had been extended and told him to come back in another 15 days. He gave another petition to the Cizre District Gendarme Command. The applicant states that both petitions were kept by the authorities and for this reason he could not present these petitions to the Commission.        A month after his son was taken into custody, the applicant went to Cizre and met the Prosecutor again. The Prosecutor said that the reply to the petition had come from the Gendarmes. The Gendarmes said that they had taken the applicant's son somewhere on Gabar mountain for a visit to the scene on 9 November 1993 and, whilst there, a clash had broken out and the applicant's son had fled.        The applicant went to Cizre again on 18 January 1994 and met the Prosecutor. He was told that a dismissal decision had been taken on Muhsin's file and that it had been sent to Diyarbakir State Security Court on 13 December 1993 under number 93/240. The file number of the State Security Court is 93/6057. The case is being investigated by Prosecutor Ünal Haney.        According to the applicant, since his son is apparently not in custody, the Prosecutor will either not proceed until he is arrested or will issue a warrant for his arrest.        The applicant believes that his son was killed whilst in the custody of the security forces.        The respondent Government state as follows.        Muhsin Tas was apprehended on 14 October 1993 and found in the possession of a kalashnikov assault rifle, a handgun and ammunition. He had received a bullet wound in the clash between the PKK and State security forces. He was treated at Cizre State hospital, the medical record of which indicated that the wound was not life-threatening. From Cizre, he was taken on the same day to the military hospital at Sirnak where the entry record indicated that his right knee was injured in that the lateral femural condyle was fractured and the infra patellar tendon was partially cut. The applicant's leg was put in splints.        On 15 October 1993, the   district gendarme commander made a written request to the Prosecutor for Cizre to hold Muhsin Tas, referred to as having a code name "Hanamir", for a 15 day interrogation period. Permission was granted. A request for a further 15 day period was granted.        On 19 November 1993, the gendarme commander reported to the Sirnak governor stating that during his interrogation Muhsin Tas had confessed that he knew certain hideouts used by the PKK in the Gabar mountain. The gendarmes carried out a search operation on 9 November 1993 taking Muhsin Tas with them. The unit came under heavy attack from the PKK on a hill (known as 1334). In the commotion that followed, Muhsin Tas took advantage of the fading light and rough terrain to make his escape. The report concluded that Tas had most probably rejoined the PKK.        The investigation concerning the applicant's son is still pending before the Diyarbakir State Security Court (No. 1993/6057) and may lead to a prosecution if he is again apprehended. There is a further investigation (No. 1995/665) pending before the Sirnak public prosecutor, which was instituted in response to the applicant's complaints to the Commission.        By statements dated 4 November 1995, two former members of the PKK allege that Tas escaped from the security forces while on Gabar mountain and came to rejoin the PKK, shortly afterwards moving to a PKK camp in Northern Iraq.   B.    Relevant domestic law and practice        Criminal procedures        The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment inflicted by civil servants). As regards unlawful killings, there are provisions dealing with unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). Provisions also cover threats (Article 191), unlawful deprivation of liberty (Article 179 in general and Article 181 for civil servants), and obliging someone through force or threats to commit or not to commit an act (Article 188).        In general, in respect of 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 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).   COMPLAINTS        The applicant complains of violations of Articles 2, 3, 5, 13, 14 and 18 of the Convention.        As to Article 2, the applicant believes that his son was killed whilst in the custody of the security forces. He alleges that because of the administrative practice of torture and the high incidence of deaths in custody, unacknowledged detention in the hands of the State in South-East Turkey is life-threatening. He also complains of the lack of any effective system for ensuring protection of the right to life and of the inadequate protection of the right to life in domestic law.        As to Article 3, he claims, in relation to his son, that the disappearance is a form of torture. He also complains of his inability to discover what had happened to his son and of discrimination on grounds of race or ethnic origin in relation to both himself and his son.        As to Article 5, the applicant complains, in relation to his son, of his not being brought before a judicial authority within a reasonable time and of not being able to bring proceedings to determine the lawfulness of his detention.        As to Article 13, he complains of the lack of any independent national authority before which these complaints can be brought with any prospect of success.        As to Article 14, he complains of an administrative practice of discrimination on grounds of race or ethnic origin in the enjoyment of the rights guaranteed under Articles 2, 3 and 5 of the Convention.        As to Article 18, he claims that the interferences in the exercise of his Convention rights and those of his son are not designed to secure the ends permitted under the Convention.        As regards the exhaustion of domestic remedies, the applicant maintains that there is no requirement that he pursue alleged domestic remedies. He asserts that any alleged remedy is illusory, inadequate and ineffective because:   -     his son's detention was officially organised, planned and executed by the agents of the State;   -     there is an administrative practice of non-respect of the rule which requires the provision of effective domestic remedies;   -     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;   -     alternatively, the applicant has done everything he can do to exhaust domestic remedies by submitting petitions to the Prosecutor and the District Gendarme Command and raising his son's disappearance with every conceivably relevant authority; the fact that it has yielded no result confirms the ineffectiveness of any alleged remedy.        The applicant seeks a guarantee of safety for himself and for those who have assisted him in pursuing his case.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 June 1994 and registered on 14 June 1994.        On 11 October 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 24 February 1995 after one extension in the time-limit. The applicant submitted observations in reply on 3 May 1995.        On 11 September 1995, the Commission decided to invite the parties to make submissions at an oral hearing.        On 16 November 1995, the Government provided further information and documents.        At the oral hearing, held on 17 January 1996, the parties were represented as follows. The Government were represented by Mr. Özmen and Mr. Alpaslan, Co-Agents and Mr. Kurudal and Mr. Polat as Advisers. The applicant was represented by Ms. Hampson, counsel and Ms. Reidy, legal assistant.        Following the submissions of the parties at the hearing, the Commission decided to adjourn the case at the request of the Government in order that the Government provide, within two weeks, documents relating to the detention of the applicant's son.        On 9 February 1996, the Government submitted copies of the documents to the Commission's Delegates in Ankara.        By letter dated 23 February 1996, the applicant submitted comments on the documents provided by the Government.        On 5 March 1996, the Commission resumed its deliberations in the case.   THE LAW        The applicant complains of the taking into custody, the detention and subsequent disappearance of his son. 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 contend 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.        The Government submit in this respect that there is an investigation (No. 1993/6057) opened at the Diyarbakir State Security Court concerning the applicant's son which may result in his prosecution if he is apprehended again. Further, they contend that the applicant never made any written petition to the Cizre public prosecutor, otherwise a preliminary investigation file would have been opened. In any event, in response to the applicant's complaint to the Commission, the Sirnak public prosecutor started a preliminary investigation (No. 1995/665) which aimed at investigating the disappearance of Muhsin Tas. That investigation is still pending.        The applicant disputes the relevance of a potential criminal prosecution against the applicant's son to a complaint that he had been killed in custody. He submits that he gave the Cizre public prosecutor two petitions and appealed to him on two further occasions for information about his son. He was referred to the pending criminal investigation and told that his son had escaped while in custody. The applicants submits that there is nothing else he could do to oblige the authorities to investigate further his son's disappearance in custody, the attitude of the investigatory authorities being to accept the claim of the security forces and that there is and has been no bona fide investigation into the disappearance.        The applicant would further submit that the facts of this case, and 44 other cases concerning South-East Turkey declared admissible by the Commission, indicate that there is an administrative practice of a failure to provide effective domestic 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. 11.5.89, D.R. 61, pp. 250, 262).        The Commission does not deem it necessary to determine whether there exists an administrative practice of the kind alleged by the applicant since 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 in the present case the applicant states that he made two petitions to the public prosecutor in Cizre with reference to the detention of his son and that he appealed to him on two further occasions. While there may be a pending file at the Diyarbakir State Security Court concerning the applicant's son dating from the time of his disappearance in 1993, it appears to concern the allegations against the son's PKK involvement rather than the applicant's allegations as to his continued detention and fate. The Government has also referred, at the oral hearing, to an investigation instituted by the Sirnak public prosecutor into the disappearance. The Commission observes however that this began only recently in 1995 and was in response to the communication of the application to the Government by the Commission. It does not consider that this can be regarded as part of the ordinary process of exhaustion of domestic remedies by an applicant for the purposes of Article 26 (Art. 26) of the Convention.        The Commission finds that in the circumstances of this case the applicant can be regarded as having brought his complaints before relevant and competent authorities. Since neither the pending investigations can be regarded as relating to the exhaustion of domestic remedies in respect of those complaints, it concludes that the applicant may be said to have complied with the domestic remedies rule laid down in Article 26 (Art. 26) of the Convention and, consequently, the application cannot be rejected under Article 27 para. 3 (Art. 27-3).        As regards the merits        The Government deny that the applicant's son has been retained in custody and submit that the applicant's allegations are without any substantiation. They state that the evidence indicates that the applicant's son is a suspected member of the PKK and that he escaped from custody when escorted by gendarmes on reconnaissance in the mountains. Statements made by former members of the PKK indicate that the applicant's son had taken refuge in camps in Iraq after his escape.        As regards the complaints under Article 5 (Art. 5) of the Convention, the Government submits that it has derogated from this provision pursuant to Article 15 (Art. 15) of the Convention, such derogation applying to this area of South-East Turkey where the extent and nature of the terrain render an extended period of custody necessary in order to cope with the collecting of evidence in relation to terrorist crime.        The applicant maintains his account of events. He refers to the fact that his son had been injured in one or both legs and that after 26 days in custody under interrogation he would have been unlikely to be able to run fast. He finds the Government's version, which has an injured man escaping from under close guard, entirely lacking in credibility. Concerning his complaints under Article 5 (Art. 5) of the Convention, he submits that, notwithstanding the derogation relied on by the Government, the detention of his son for at least 26 days (on the version of the Government) in circumstances disclosing an absence of the necessary safeguards against abuse discloses a clear violation of this provision.        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 ADMISSIBLE, without prejudging the merits, the      applicant's complaints relating to the detention of his son;        by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's remaining complaints.        Secretary to the Commission          President of the Commission               (H.C. KRÜGER)                         (S. TRECHSEL)