CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1997

.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. 25165/94                     by Mevlude AKDENIZ                     against Turkey          The European Commission of Human Rights sitting in private on 1 December 1997, the following members being present:               Mr    S. TRECHSEL, President           Mrs   G.H. THUNE           Mrs   J. LIDDY           MM    E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                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                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, 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 18 August 1994 by Mevlude AKDENIZ against Turkey and registered on 16 September 1994 under file No. 25165/94 ;        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      17 March 1995 and the observations in reply submitted by the      applicant on 21 February 1996 ;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1955, is a Turkish citizen of Kurdish origin who resides at Sesveren hamlet, Karaorman village, Kulp, Diyarbakir. She is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England.   A.    The particular circumstances of the case        The facts, which are in dispute between the parties, may be summarised as follows.        The applicant gives the following account of events.        On 20 February 1994 at approximately 2.30 pm, some 200 soldiers from the Kulp District Gendarme Command gathered around Sesveren hamlet, which belongs to Karaorman village. Some of the soldiers entered the village and asked the villagers for food. The soldiers were provided with food and drink.        While some of the soldiers were eating, other soldiers entered houses and other buildings in the village and forced the occupants, men, women, children and the aged, out into the street. At that time, the applicant's son Mehdi Akdeniz was praying in the mosque and he too was forced on to the street.        Once the villagers had been herded together in the village square, the soldiers started burning the village houses. When the burning had finished, a soldier of unknown rank read six names from a list and told these six persons to stand separately from the rest of the people in the square. The six persons were: Mehdi Akdeniz (22 years old), Halit Akdeniz (35 years old), Irfan Akdeniz (18 years old), Mehmet Sirin Allahverdi (35 years old), Ziya Çiçek (22 years old) and Faik Akdeniz (35 years old).        The soldiers assaulted these six persons in front of the rest of the villagers and then took them out of the sight of the villagers. The soldiers remained in the village for some two hours and then walked with the group of six persons to a neighbouring hamlet some 1.5 km away. Vehicles were waiting for the soldiers there and the six persons were taken away.        The soldiers released Irfan Akdeniz, Mehmet Sirin Allahverdi and Ziya Çiçek after holding them for 18 days.   These persons stated that they had themselves been subjected to intense torture during their period in custody but that Mehdi Akdeniz had been exposed to the most severe torture.        According to the information given by those released, Mehdi Akdeniz was held at Kulp District Gendarme Command for five days where he was subjected to intense torture. He was then sent to Silvan and he was not seen again by the others in the group, all of whom were released save for Faik Akdeniz, who was remanded in custody and sent to Diyarbakir E-Type prison, and Ziya Çiçek.        On 10 March 1994 a villager was released from custody at the Silvan District Gendarme Command. He stated that he had seen Mehdi Akdeniz in Silvan and that Mehdi had been taken to Diyarbakir after being held for one week in Silvan. He said that Mehdi Akdeniz was in very poor condition and that it was clear that he had been severely tortured. The villager refused to disclose his identity, fearing retaliation by the security forces.        Three further people - Cezvet Yilmaz and Mazhar, who are currently in Elazig prison, and Resat Parnuk, who is free - were at Diyarbakir Provincial Gendarme Command and stated that they had seen Mehdi Akdeniz there. They said that Mirza Ates and Kudusi Adigüzel, who have been missing for a long time, were being held with Mehdi Akdeniz. It has further been stated by a large number of people that many disappeared persons have been seen at Diyarbakir and that once persons have been taken there, it is not possible to contact them.        The applicant has received no further information in relation to her son. She states that that she has made several applications, both orally and in writing, about Mehdi Akdeniz to the Diyarbakir State Security Court which have not been answered. She has submitted a copy of a request which she made to the Chief Prosecutor at the State Security Court on 11 May 1994, in which she states that her son had been taken into custody for an alleged offence on 20 February 1994 and requests that his position be immediately communicated to her and that he be brought before the Prosecutor, as no information had been given to her about his fate and his condition and as they were concerned for his life. Upon this request there is a note by the Chief Prosecutor, also dated 11 May 1994, which reads as follows: "His name was not discovered on examination of our custody records. For your information."        The applicant submitted the Human Rights Association Report of February 1994, according to which in February 1994, 50 houses in the village of Sesveren (Kulp) were burned down by security forces.        The respondent Government state as follows.        No operation was carried out in the Kulp-Sesveren area on 20 February 1994.    The Government submit a copy of the custody records from the Kulp District Gendarme Command for the period 26 January - 24 February 1994 and state that neither the applicant's son nor the other five persons mentioned were taken into custody or detained.        The inhabitants of the village of Karaorman (Sesveren included) have fled from their homes because of intimidation by the PKK.     B.    Relevant domestic law        Civil and administrative procedures        Article 125 of the Turkish Constitution provides as follows:        (translation)        "All acts or decisions of the Administration are subject to      judicial review ...        The Administration shall be liable for damage caused by its own      acts and measures."        The principle of administrative liability is reflected in the additional Article 1 of Law 2935 of 25 October 1983 on the State of Emergency, which provides:        (translation)        "... actions for compensation in relation to the exercise of the      powers conferred by this law are to be brought against the      Administration before the administrative courts."        Proceedings before the administrative courts are in writing.        Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts and the administrative courts. Damage caused by terrorist violence may be compensated out of the Social Help and Solidarity Fund.        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 and 459), intentional homicide (Article 448) and murder (Article 450).        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 life or damaging property, if they have not acted under 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 Procedure of Military Courts).        If the alleged author of a crime 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.        Emergency measures        Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.        Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under Laws or Decrees enacted between 12 September 1980 and 25 October 1983. That includes Law 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.        Extensive powers have been granted to the Governor of a region in a state of emergency by such decrees, especially Decree 285, as amended by Decrees 424 and 425, and Decree 430.        Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.        Article 8 of Decree 430 of 16 December 1990 provides as follows:        (translation)        "No criminal, financial or legal responsibility may be claimed      against the Governor of a region in the state of emergency or a      Governor of a province within a state of emergency region in      respect of their decisions or acts connected with the exercise      of the powers entrusted to them by this decree, and no      application shall be made to any judicial authority to this end.      This is without prejudice to the rights of individuals to claim      indemnity from the State for damage suffered by them without      justification."     COMPLAINTS        The applicant complains of violations of Articles 3, 5, 6, 13 and 14 of the Convention.        As to Article 3, she alleges, as the next-of-kin of Mehdi Akdeniz, that the latter has been subjected to torture. She further considers that she has herself suffered inhuman treatment as she has been unable to discover what has happened to her son and this has caused her mental suffering. She also considers that both she and her son have suffered degrading treatment as they have been discriminated against on grounds of their race.        As to Article 5, she complains, as the next-of-kin of Mehdi Akdeniz, that the latter has been unlawfully deprived of his right to liberty.        As to Article 6, she complains, as the next-of-kin of Mehdi Akdeniz, that the latter has been denied a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.        As to Article 13, she complains of the lack of an independent national authority before which these complaints of violations can be made with any prospect of success.        As to Article 14, she complains that both she and her son have been unable to enjoy the rights and freedoms set forth in the Convention due to the practice of discrimination on the ground of race. As regards Article 14 in conjunction with Article 13, she points out that only Turkish citizens of Kurdish origin are affected by the breakdown of the system of "effective remedies".        As regards exhaustion of domestic remedies, the applicant maintains that there is no requirement that she pursue such remedies, as any alleged remedy is illusory, inadequate and ineffective. In this respect she states that (a) there is an administrative practice of non- respect of the rule which requires the provision of effective domestic remedies; (b) 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; (c) whether or not there is an administrative practice, the situation in South-East Turkey is such that potential applicants have a well-founded fear of the consequences, should they invoke alleged remedies.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 August 1994 and registered on 16 September 1994.        On 28 November 1994 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 17 March 1995 and 29 November 1995. The applicant replied on 18 May 1995 and 20 February 1996.     THE LAW        The applicant complains about the taking into custody and disappearance of her son. She invokes Article 3 (Art. 3) (prohibition on inhuman and degrading treatment), Article 5 (Art. 5) (right to liberty and security of person), Article 6 (Art. 6) (right to a fair trial), Article 13 (Art. 13) (right to effective national remedies for Convention breaches) and Article 14 (Art. 14) (prohibition on discrimination).        Exhaustion of domestic remedies        The Government submit that the applicant 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 contend that the applicant has not instituted any legal proceedings.   They refer to the possibility of an administrative action pursuant to Article 125 of the Constitution, Law 2935 of 25 October 1983 on the State of Emergency and Decree 430 of 16 December 1990. They state that the applicant could have pursued a criminal complaint pursuant to Articles 151 and 153 of the Code of Criminal Procedure or to Articles 93 and 95 of Law 353 on the Constitution and the procedure applicable to military tribunals.        The Government submit that the applicant has neither filed a complaint concerning the "disappearance" of her son, nor requested the opening of an investigation in relation to the alleged facts, but contented herself with requesting information on the detention on remand of her son.        The applicant submits that she has brought her complaints to the attention of the authorities, including the Public Prosecutor, and that no action has been taken.   The only answer she has received to her numerous petitions is the answer of 11 May 1994 of the Chief Prosecutor of the State Security Court in Diyarbakir.   The applicant submits that despite her numerous petitions, no attempt has been made to investigate the case, for example by taking the statements of the persons who saw her son while in detention.    The applicant finally submits that in view of the outright denial by the security forces that her son has been taken into custody, any further action on her part would be futile. She also refers to the negligible rate of prosecution of members of the security forces for human rights abuses in South-East Turkey.        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 HR, De Jong, Baljet and Van den Brink v. the Netherlands 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).        The Commission notes the applicant's statement that she made several applications, both orally and in writing, to the Diyarbakir State Security Court, which remained unanswered. She has not given any details as to the precise contents of these requests. It is clear, however, that in any case she made a petition to the Chief Prosecutor of the State Security Court of Diyarbakir about the fate and condition of her son, and she indicated in her petition that he had been taken into custody and then disappeared. The reply of the Chief Prosecutor at the State Security Court of Diyarbakir was only that the name of the applicant's son had not been found on their custody records. The Chief Prosecutor did not indicate that he would make any further enquiries, nor did he give any advice as to further measures which the applicant herself could take. While the Government point out that a request for information is not the same as a formal complaint, the Commission is not satisfied that, in view of the denial of the the authorities that the applicant's son had been in their custody, the further step of registering an official complaint of disappearance would have served any practical or effective function.        The Commission is therefore satisfied that in the circumstances of this case the applicant can be regarded as having brought her complaints before the relevant and competent authorities and that accordingly she is not required under Article 26 (Art. 26) of the Convention to pursue any other legal remedy in this regard (cf. Nos. 16311/90, 16312/90 and 16313/90; N.H., G.H. and R.A. v. Turkey, Dec. 11.10.91, unpublished and No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207).        The Commission concludes that the applicant may therefore be considered to have complied with the domestic remedies rule laid down in Article 26 (Art. 26) of the Convention and that the application should not be rejected under Article 27 para. 3 (Art. 27-3).        As to the substance of the applicant's complaints        The Government deny that any operation was carried out in the area on 20 February 1994 and that the applicant's son was taken into custody or detained.   They submit that the applicant's allegations are unsubstantiated and of dubious credibility.   They further submit that it is "notorious" that the village of Karaorman has been abandoned by the villagers because of intimidation by the PKK.        The applicant maintains her account of events, which she states is supported by detailed statements from a number of witnesses.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of 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.             M. de SALVIA                         S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission