CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 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. 23423/94                       by M. Safi ARANACAK and Izzet MATYAR                       against Turkey        The European Commission of Human Rights sitting in private on 13 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  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                  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 24 January 1994 by M. Safi ARANACAK and Izzet MATYAR against Turkey and registered on 8 February 1994 under file No. 23423/94;      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      11 January 1995 and the observations in reply submitted by the      applicant on 20 March 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, Turkish citizens of Kurdish origin, were born in 1959 and 1933 respectively, and were residents of the village of Ormaniçi (Ormandisi). They are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England. The first applicant died on 13 January 1994.        The facts of the present case are in dispute between the parties.   A.    Particular circumstances of the case        The applicants state as follows.        On 24 July 1993 at about 17.00 hours, the applicants' village, Ormaniçi, was the subject of an armed attack by a large group of village protectors, estimated at 80, from the neighbouring village of Boyunlu, which is situated about 4-5 kilometres from Ormaniçi on the other side of a mountain. The attack was instigated by the Silvan Gendarme Headquarters and helicopter gunships under the direction of the gendarmes were part of the attack.        In separate statements the applicants have given an account of the details of the attack. They have described how the village protectors threatened to burn the village, accusing the villagers of supporting terrorists and how many villagers fled from the village or hid among the trees.   Two persons were shot and killed. The protectors also shot at persons fleeing and helicopters were firing at them from the air. In the first applicant's house, all the goods were burnt or rendered unusable. The walls of the house were full of holes and the windows were broken. In the second applicant's house, the goods inside the house were untouched, but the walls of the house were full of holes and all windows were broken. A diesel tank, an irrigation pump and certain other property were damaged. Both applicants also state that large quantities of crops or fruit were destroyed.        After the raid the captain in command of Silvan Central Gendarme Station came to the village and declared that the village had been burnt and destroyed by terrorists, and the villagers were also told to say untruthfully that the raid had been effected by terrorists and that those killed had been caught in crossfire between the protectors and the PKK (Kurdish Workers' Party). A report was drawn up the Gendarme commander stating that a clash had broken out between the PKK and the security forces, that two people had been killed in the cross-fire and that the village had been burnt and destroyed by terrorists. This information was given to the Silvan public prosecutor and a similar version of the events was also given on television. It became the official version but is false.        The respondent Government state as follows.        A report dated 23 July 1993 by the gendarmerie district deputy commander indicates that a clash had taken place on that day when three temporary village guards from Boyunlu came across members of the PKK resting by a stream. The PKK opened fire, wounding two of the guards. The PKK fled towards the mountains via the village of Ormandisi and in their flight they killed a 55 year old woman and a 10 year old boy in the village. The PKK were pursued with the aid of a gendarmerie commando unit, an armoured   unit and a unit from a local gendarmerie station. At 19.30 hours when it grew dark, contact was lost.        The Government have also provided a statement made by the applicant Izzet Matyar on 29 September 1994 at the Silvan Gendarmerie in which he states that his house and garden were not destroyed by the security forces in the way alleged. They have submitted a second statement by him to the same effect, dated 30 September 1994 taken by the public prosecutor at Silvan and in which it is also stated that he has made no complaint anywhere concerning these matters.        Following the communication of the application to the Government, an investigation was opened by the Silvan public prosecutor (file No. 1994/486) into the allegations made by the applicants. The investigation terminated on 3 October 1994 with a finding of insufficient evidence.        The Government also state that the applicant M. Safi Aranacak died on 13 January 1994 following an armed confrontation between the security forces and the PKK which took place near the village of Boyunlu. His family left the following week to live in Diyarbakir.        A report dated 13 January 1994 from the gendarmerie district command reported that three temporary village guards were on patrol when they met a group of 7-8 PKK members. A clash ensued in which two PKK members, one of whom was later identified as M. Safi Aranacak, were killed.   COMPLAINTS        The applicants complain of violations of Articles 3, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1.        As to Article 3, they consider that the subjection of them and their families to the experience of an armed attack and the experience of being forced to flee for their lives for fear of death at the hands of the guards and gendarme forces constitutes inhuman treatment.        As to Article 6, they consider that the attack on their homes and possessions constitutes a clear interference with their civil rights. However, the falsification of the facts makes it impossible for them to pursue any remedy or to obtain compensation in court. Nor will there be any prosecution of those responsible for the attack.        As to Article 8, they complain that the attack on their homes and families constitutes an interference with their right to respect for their home and family life, for which there is no justification under Article 8 para. 2.        As to Article 13, they complain that there is an administrative practice of violation of that Article in South-East Turkey, and they refer to the arguments put forward in Application No. 21895/93, Cagirga v. Turkey. They add that the falsification of the facts about the attacks on the village offers clear evidence of a practice of deliberately frustrating the possibilities of remedies for victims who are Kurds.        As to Article 14, the applicants consider that they have been discriminated against because they are Kurds in the enjoyment of their rights under Articles 3, 6 and 8 of the Convention and Article 1 of Protocol No. 1. They again refer to the arguments presented in regard to Application No. 21895/93, Cagirga v. Turkey.        As to Article 18, they allege that the restrictions on all the rights they have complained of have been imposed for purposes incompatible with the Convention.        As to Article 1 of Protocol No. 1, they complain of the damage to their homes, goods and crops. They add that there is no possibility of compensation in view of the official falsification of the facts which led to the destruction.        As to the exhaustion of domestic remedies, the applicants submit that there are no remedies possible to exhaust, since the attack was carried out by security forces and the villagers were then intimidated and threatened into accepting a deliberately false account of the raid. Consequently, it is impossible for them to have their account of what happened listened to or acted upon by anyone in authority. The applicants further state that the right to an effective remedy is violated in South-East Turkey and that there is an administrative practice in this regard.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 January 1994 and   registered on 8 February 1995.        On 6 July 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 12 November 1994. At the Government's request, this time-limit was subsequently extended until 12 December 1994. The Government's observations were sent on 11 January 1995. Observations in reply were submitted on behalf of the applicants on 20 March 1995.        On 10 April 1995, the Commission decided to invite the parties to provide further information relating to the apparent death of M. Safi Aranacak and the circumstances in which Izzet Matyar allegedly made statements to the gendarmerie and the public prosecutor concerning this application.        The applicants' representatives responded by letter of 30 May 1995, stating, inter alia, that they had been unable to obtain a written statement from the widow of M. Safi Aranacak regarding the continuation of the application. The Government responded by letter dated 7 July 1995, after an extension in the time-limit set for that purpose.        The applicant's representatives made further submissions by letter of 13 October 1995, explaining, inter alia, that they had still not obtained any written authorisation from M. Safi Aranacak's widow. By letter dated 10 November 1995, the Government provided further information.        By letter dated 26 February 1996, the applicants' representatives informed the Secretariat that they had not succeeded in making contact with Mrs. Aranacak despite numerous efforts and that they were accordingly not in a position to furnish the requisite letter of authority.   THE LAW        The applicants complain that the security forces carried out a raid on their village during which their homes and property were destroyed. They invoke Article 3 (Art. 3) of the Convention (the prohibition on inhuman and degrading treatment), Article 6 (Art. 6) (the right of access to court), Article 8 (Art. 8) (the right to respect for family life and the home), Article 13 (Art. 13) (the right to effective national remedies for Convention breaches), Article 14 (Art. 14) (prohibition on discrimination in the enjoyment of Convention rights) and Article 18 (Art. 18) (the prohibition on using authorised Convention restrictions for ulterior purposes) as well as Article 1 of Protocol No. 1 (P1-1) to the Convention (peaceful enjoyment of possessions).        The Government have objected to the admissibility of these applications:        1. in respect of the first applicant, M. Safi Aranacak, they      dispute the validity of the application in light of his death;        2. in respect of the second applicant Izzet Matyar, they dispute      the validity of the application in light of his statements to the      gendarmerie and the public prosecutor;        3. in any event, they consider that the applicants have failed      to exhaust domestic remedies as required by Article 26 (Art. 26)      of the Convention.   A.    Application made in the name of M. Safi Aranacak        The Government point out that the application made in the name of M. Safi Aranacak makes no reference to the fact that he had in fact died some time previously. They submit that the authenticity of the application is seriously in doubt and it should be struck out.        The applicants' representatives state that this applicant came to the Human Rights Association (HRA)   on 28 July 1993 and made a statement, also signing a letter of authority authorising an application to be made in his name. They state that a lawyer from the HRA had spoken to the widow of this applicant who wanted the application to continue but that as she had moved address they had been unable to contact her further with a view to obtaining a letter of authority.        The Commission notes that the applicants' representatives have provided a letter of authority signed by M. Safi Aranacak and dated 29 July 1993, together with a statement of allegations dated 28 July 1993. However, it appears that these documents were sent to the Commission by the applicants' representatives under cover of letter dated 21 January 1994. It now appears, and is accepted by the applicants' representatives that M. Safi Aranacak had been killed on 13 January 1994 before the introduction of his application.        The Commission finds it unnecessary to determine whether or not the application introduced on behalf of M. Safi Aranacak is a valid exercise of the right of individual petition under Article 25 (Art. 26) of the Convention. The Commission's case-law indicates that the continuation of an application introduced by an applicant who has died depends on the intentions expressed by his successor (see eg. No. 12526/86, dec. 7.1.91, D.R. 68 p. 104).        There have been numerous examples where the widow of an applicant has been found able to continue an application in place of the deceased (see eg. No. 10828/84, dec. 6.10.88, D.R. 57 p. 5). While it may have been possible for the wife of M. Safi Aranacak to apply to continue the application, the Commission notes that,   despite a considerable lapse of time, the applicants' representatives have been unable to obtain a letter of authority from Mrs. Aranacak and appear to have been unable to trace her whereabouts.        In these circumstances, the Commission finds that it is unable to pursue the examination of the complaints made on behalf of M. Safi Aranacak due to the lack of any appropriate person to continue it. It finds no indication which would justify any suspicion that the applicant's death was connected with the introduction of this application. In the circumstances of this case, it finds that no issue arises relating to respect for human rights which would require the examination to continue pursuant to Article 30 para. 1 (Art. 30-1) in fine.        It follows that this part of the application must be struck off the Commission's list of cases pursuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention.   B.    Concerning the second applicant Izzet Matyar   1.    Validity of the application        The Government have submitted statements taken by the gendarmerie and by the public prosecutor from Izzet Matyar to the effect that his house, garden and fields were not burnt and destroyed as alleged and that he has not made any complaint about such matters. The statements were given freely by the applicant without any oppression or coercion. They submit that this establishes the complete lack of authenticity of the present complaints and that the applicant's representatives cannot claim to be pursuing a genuine application.        The applicant's representatives have stated that there is serious doubt, supported by the evidence in other applications, that the statements obtained from the applicant by various state authorities can be regarded as a representation of his true wishes or a true account of the events of 24 July 1993. They allege that the applicant made these statements under intimidation and duress and that he has expressed his wish to continue with his application before the Commission.        The Commission notes that the application submitted to it contains a power of attorney in favour of the applicant's representatives and a statement of facts and complaints, both of which contain the applicant's signature. It further notes that the applicant has not effectively denied that he signed these documents. The statements relied on by the Government refer in general terms to a denial of any complaint being made. This cannot be regarded as a clear or express statement rejecting the authenticity of the petition made in his name to European Commission of Human Rights. The Commission accordingly concludes that there is insufficient basis for it to conclude that   the application lodged in his name by the named authorised representatives was not a valid exercise of the right of individual petition under Article 25 (Art. 25) of the Convention.        The Commission has also considered whether, notwithstanding the above finding, the statements can be construed as the expression of the applicant's wish to discontinue the application and thus disclose a ground on which the application should be struck from its list of cases. It recalls that pursuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention it may proceed to strike a case from its list where circumstances lead to the conclusion that an applicant does not wish to pursue his or her petition.        The Commission has had regard to the serious nature of the complaints made in this application with regard to the raid on the applicant's village and the destruction of his property. It has also noted with concern the grave allegations made by the applicant's representatives in regard to intimidation of the applicant. It further notes the Government's emphatic denial of these allegations as unsubstantiated. It considers however that where there exists a doubt as to the voluntariness of a withdrawal of an application it would run counter to the efficacy of the system of protection of human rights set up under the European Convention of Human Rights for the Commission to discontinue its examination of the case (see also Kurt v. Turkey, No. 24276/94 dec. 22.5.95). It recalls that in the case of Akdivar and others v. Turkey (No. 21893/93, Comm. Rep. 26.10.95) pending before the Court) it noted with concern that applicants or persons thought to be applicants had been directly asked about their applications and been presented with statements to sign declaring in effect that no such applications had been brought. The Commission commented in that context that it considered that it was inappropriate for the domestic authorities to approach applicants and to question them about their applications in the absence of their legal representatives and that in that case the Turkish authorities had hindered the effective exercise of the applicants' right of individual petition.   In the current state of this application and given the equivocal statements relied on by the Government, the Commission finds that doubts as to the voluntariness of any purported intention to withdraw the application cannot be excluded at this stage.        Further, even assuming that the circumstances might disclose an intention on the part of the applicant voluntarily to withdraw the application, having regard to Article 30 para. 1 (Art. 30-1) in fine, which provides that the Commission shall continue the examination of a petition if respect for human rights as defined in the Convention so requires, the Commission does not find it appropriate to strike the case from the list of its cases at the present time.   2.    Exhaustion of domestic remedies        The Government submit that the second 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.   They contend that the second applicant has failed to apply for compensation before either the administrative or civil courts and that no complaint has been made before the public prosecutor.        The second applicant maintains that there is no requirement that he pursue domestic remedies. Any purported remedy is illusory, inadequate and ineffective since, inter alia, the operation in question in this case was officially organised, planned and executed by the agents of the State. None of the remedies suggested by the Government could be regarded as effective, in the applicant's view, because the scale of destruction of villages, as well as the expulsion and creation of internal refugees, is so great in South-East Turkey that this must be considered   high-level Government policy - an administrative practice - in regard to which all remedies are theoretical and irrelevant.        Further, the applicant submits that, whether or not there is an administrative practice, domestic remedies are ineffective in this case having regard, inter alia, to the situation in South-East Turkey which is such that potential applicants have a well-founded fear of the consequences, should they pursue domestic remedies; the lack of genuine investigations by public prosecutors and other competent authorities; the absence of any cases showing the payment of adequate compensation to villagers for the destruction of their homes and villages, or for their expulsion; and the lack of any prosecutions against members of the security forces for the alleged offences connected with the destruction of villages and forcible expulsions.        The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies as 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 second 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 Akdivar and others v. Turkey (No. 21893/93, 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 has been a frequent occurrence in South-East Turkey, the Government had not provided a single example of compensation being awarded to villagers for damage comparable to 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.   This part of the application cannot, therefore, be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   3.    As regards the merits        The Government have made no comment on the substance of the second applicant's complaints but have submitted materials concerning a clash between security forces and the PKK which took place in the area of the village on 23 July 1993, a report of that date from the gendarmerie stating that PKK members fled through the village and killed two persons. They have also submitted statements signed by the second applicant which deny that his property suffered any damage.        The second applicant's representatives maintain the account of events given by him in the introduction of the application. They refer to the lack of precision in official reports as regards the damage which occurred in the village in or about that date and the lack of any apparent detailed investigation into the events.        The Commission considers, in the light of the parties' submissions, that the second applicant's complaints raise 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 this part of 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      DECIDES TO STRIKE OUT the complaints made on behalf of the first      applicant M. Safi Aranacak;        by a majority      DECLARES ADMISSIBLE the complaints made by the second applicant      Izzet Matyar, without prejudging the merits of the case.   Secretary to the Commission            President of the Commission          (H.C. KRÜGER)                           (S. TRECHSEL)