CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 octobre 1999

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s23A41E03 { width:36pt; display:inline-block } .sBA8DCCFC { width:35.45pt; display:inline-block } .sE55CAA3E { width:1.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s31BEBB9E { width:7.26pt; display:inline-block } .s645D9A04 { width:3.92pt; display:inline-block } .s9872C2C6 { width:15.43pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s57F308DA { width:65.31pt; display:inline-block } .s7058A54 { width:0.55pt; display:inline-block } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s77C4E983 { width:73.28pt; display:inline-block } .s811DC823 { width:21.93pt; display:inline-block } .sEBCE2A28 { width:50.61pt; display:inline-block } .s3556D7C1 { width:304.75pt; display:inline-block } .s4954B46 { margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify } .s241FF221 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify } .sD5954E93 { width:13.35pt; display:inline-block } .s33E1B184 { width:256.83pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .sFBBFC6C9 { width:290.51pt; display:inline-block } FIRST SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 30949/96 by Yasin ATEŞ against Turkey     The European Court of Human Rights (First Section) sitting on 19 October 1999 as a Chamber composed of     Mrs   E. Palm, President ,   Mr   J. Casadevall,   Mr   Gaukur Jörundsson,   Mr   C. Bîrsan,   Mrs   W. Thomassen,   Mr   R. Maruste, judges ,   Mr.   F. Gölcüklü, ad hoc judge ,     and   Mr   M. O’Boyle, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 13 December 1995 by Yasin Ateş against Turkey and registered on 3 April 1996 under file no. 30949/96;     Having regard to the reports provided for in Rule 49 of the Rules of Court;     Having regard to the observations submitted by the respondent Government on 18   July 1997 and the observations in reply submitted by the applicant on 9 October 1997;     Having deliberated;     Decides as follows: THE FACTS     The applicant, a Turkish citizen of Kurdish origin, was born in 1931 and resides in the district of Kulp near Diyarbakır. He is applying to the Court on behalf of himself and his deceased son, Kadri Ateş, born in 1966. The applicant is represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, both university teachers at the University of Essex.       The facts of the present case, as submitted by the parties, may be summarised as follows.   A. Particular Circumstances of the Case     The applicant states as follows.     The applicant’s son lived in Diyarbakır where he worked with Zahit Trade, which sold foodstuff wholesale to small businesses and security and military establishments in the region.     On 13 June 1995 at about 6 a.m. Kadri Ateş (K.A.), together with his colleague, Burhan Afsin (B.A.) set off for the Kulp district in a lorry, registration number 06 ERS 042, which belonged to Zahit Trade. They were accompanied by K.A.’s relative, Vehbi Demir (V.D.), his paternal uncle Kemal Ateş (Ke.A) and a man called Memduh Çetin (M.C.). At Seyrantepe, Ke.A. disembarked from the vehicle due to overcrowding and continued his journey in another vehicle.     At about 8.00 a.m., one kilometre before the Lice-Kulp fork, the vehicle was stopped by policemen. The policemen carried out an identity check on the occupants. The policemen ordered M.C. and B.A. to get out of the lorry and took them by police minibus to the police point at the entrance to Lice district. K.A. and V.D. followed them in the truck.     The four men waited at the police point in Lice without receiving an explanation concerning the reason for their detention. More officers arrived and they were told that they would be taken back to Diyarbakır to the Financial Branch of the Police as there was a problem concerning some cheques. K.A. was placed into the back of a Renault car between two police officers. The other three were ordered to drive the lorry back to Diyarbakır, in front of the Renault.     The vehicles then stopped at the Regional Traffic Directorate, Diyarbakır. Ten to fifteen minutes after their arrival, two police officers from a car which had arrived later entered the hall carrying firearms and ordered K.A. and V.D. to come with them to the car, whereupon they were blindfolded. In the car they were questioned about "Mekap shoes", which is known as a brand of sports shoes used by the PKK and which were found in the lorry. The officer asked them as to where they were taking these shoes. K.A. told him that he was taking them to the mountains. The officer then proceeded to punch K.A.     The car stopped outside the Riot Police Directorate. They were taken to a cell in which V.D. was handcuffed to the door of the cell while still blindfolded. He then heard the officers telling K.A. to strip.     Thereafter, V.D. heard K.A.’s screams and cries that continued for two to four hours.     On the fifteenth day of custody, V.D. was taken for interrogation and subjected to beating during which he continued to deny all accusations. His interrogators told him that they had killed K.A.     On 20 June 1995, seven days after K.A. was detained, the applicant applied to the State Security Court of Diyarbakır for information concerning the detention of his son. He was informed that his son was not in custody and was referred to the Diyarbakır Security Directorate who reiterated that his son was not in custody. He was then referred to the Lice State Prosecutor who informed him that K.A. had died in a clash between security forces and the PKK. The applicant later exhumed his son’s body from the Lice cemetery and buried him in the Kulp district.     On 30 June 1995 V.D., M.C. and B.A. were brought before the State Security Court. V.D. and M.C. were released and B.A. was remanded in custody.     The respondent Government state that the information obtained from the Turkish authorities contradicts the applicant’s allegations and make the following submissions.     On 13 June 1995 the Diyarbakır Security Department was informed that K. A., M.Ç., V.D. and B.A., would be travelling in a lorry, plate number 34 ERS 82, in order to hand over some logistical supplies to PKK members. The same day at about 7.45 p.m. these four men were observed along the Bingöl road in an Isuzu lorry, with plate number 34 ERS 82. An identity check was carried out on all passengers and various items of equipment were found in the lorry. In his interrogation, K.A. confessed that they were carrying supplies to the PKK members and that they were going to hand them over at the Aksu petrol station. According to the official Incident and Apprehension Report dated 14 June 1995, these people were detained for suspected participation in terrorist activity, consisting in dropping off supplies to PKK members at the Aksu petrol station between the Lice turn-off and Dura Gendarme Station at about 9.00 p.m.     The report further stated that V.D., M.C. and B.A. were taken to Diyarbakır for interrogation while K.A. was handed over by the Gendarmerie to the Security Special Action Teams to voluntarily help to set an ambush at the said petrol station. The Government refers at this point to the custody record, which contains no mention of K.A.     According to the Government, at about 11.45 p.m., five PKK members arrived at the said petrol station. Subsequently, an armed clash started between the security forces and the PKK members. This armed clash continued for half an hour.   K.A., who tried to escape from the security forces during this armed clash, was caught in the cross-line and shot dead. Two other terrorists were also shot while the others escaped.     Immediately after the incident, the Lice Gendarme Commander commenced an investigation.       On 14 June 1995 an autopsy was conducted on these three bodies. The autopsy report indicated that the third person, later identified as K.A., died as the result of acute loss of blood caused by firearm injuries.     On 21 June 1995 the applicant, who applied to the Lice Public Prosecutor for information about his son, identified the third body on the photographs as his son.     The Lice Public Prosecutor commenced an ex officio investigation under file no. 1995/33 in order to clarify the circumstances of the death of K.A. This investigation is still pending.     The public prosecutor, attached to the Diyarbakır State Security Court, started criminal proceedings in the Diyarbakır State Security Court against B.A. and V.D., who were travelling with the applicant’s son in the same lorry. On 16 November 1995 they were acquitted of the charges against them.   B. RELEVANT DOMESTIC LAW AND PRACTICE   Criminal Law Procedures :     Under the Turkish Criminal Code all forms of homicide (Articles 448 and 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 and 153 of the Turkish Criminal Procedure Code. Offences may be reported to the authorities or to members of the security forces as well as to the public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).     If there is evidence to suggest that the death is not due to natural causes, members of the security forces who have been informed of the fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duty is liable to imprisonment.     A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution.   COMPLAINTS       The applicant complains of violations of Articles 2, 3, 5, 6, 13 and 14 of the Convention.     As to Article 2, the applicant submits that his son, K.A., did not die in a clash but was killed in custody under torture by the security forces. He also complains that his son was deprived of his life by use of force disproportionate to any lawful ground justifying the use of force and more than absolutely necessary to achieve any legitimate purpose under this provision.     He further submits that there was inadequate protection of the right to life in domestic law and failure to protect or adequately to protect the right to life by initiating proceedings to determine whether or not those responsible for deaths acted lawfully.     As to Article 3, the applicant maintains that particular acts of torture were inflicted on his son and that his son was held in conditions of detention, which constitute at least inhuman treatment.     As to Article 5, the applicant alleges that his son was detained in circumstances incompatible with the requirements of Article 5 §§ 1 (c), 3, 4 and 5 of the Convention.     As to Article 6, the applicant claims that there was a failure to investigate and/or initiate proceedings before an independent and impartial tribunal against those responsible for the killing of his son. He also claims to have been precluded from bringing any civil proceedings before a court.       As to Article 13, he submits that he was unable to have access to an independent authority, which could offer him a remedy for the serious violations he and his son have suffered. He further submits that there is lack of any independent national authority before which these complaints can be brought with any prospect of success.     As to Article 14, the applicant complains of discrimination in the enjoyment of his rights under Articles 2, 3, 6 and 13.   In particular, he alleges that only Turkish citizens of Kurdish origin are subjected to unlawful killings. He also complains that the breakdown of the investigation and prosecution system in respect of the security forces only arises on a systematic basis in south-east Turkey and in relation to Turkish citizens of Kurdish origin.   PROCEDURE BEFORE THE COURT     The application was introduced on 13 December 1995 and registered on 3   April 1996.       On 6 March 1997 the Commission decided to communicate the application to the respondent Government.     The Government’s written observations were submitted on 18 July 1997, after an extension of the time-limit.   The applicant replied on 9 October 1997.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.   THE LAW     The applicant alleges that his son died as a result of ill-treatment in custody. He invokes Articles 2 (the right to life), Article 3 (prohibition on inhuman and degrading treatment), Article 5 (the right to liberty and security of person), Article 6 (the right of access to court), Article 13 (the right to effective national remedies for Convention breaches) and Article 14 (prohibition on discrimination).   Exhaustion of domestic remedies     The Government argue that the application is inadmissible since the applicant has failed to exhaust domestic remedies as required by Article 35 of the Convention before lodging an application with the Court. They contend that the applicant did not file a criminal complaint with the Public Prosecutor concerning his allegations.       The applicant maintains that 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. He refers to an administrative practice of unlawful killings and of not respecting the requirement under the Convention of the provision of effective domestic remedies.     The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (Yaşa v. Turkey judgment of 2   September 1998, Reports of judgments and decisions 98 , No.88, §§ 71).     In so far as the Government argue that the applicant failed to file a criminal complaint, the Court notes that under Turkish law, this is not a condition sine qua non for the opening of a criminal investigation of a suspected unlawful killing. It appears that, in the present case, the criminal investigation of the killing of the applicant’s son was in fact opened ex officio. The Court is, therefore, of the opinion that the applicant was not required to make a further explicit request to this effect by filing a criminal complaint as this would not lead to any different result in this respect (see, mutatis mutandis , the Oğur v. Turkey judgment of 20 May 199, cited above, §67).     The Court concludes that the applicant should be considered to have complied with the exhaustion of domestic remedies rule laid down in Article 35 of the Convention. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies under Article 35 para.1 of the Convention.   As regards the merits     The Government submit that the applicant’s complaints were unsubstantiated. They contend, referring to the custody records, that Kadri Ateş was not taken into custody but was killed during an armed clash between the PKK and the security forces. The Government add that Kadir Ates had connections with PKK and that he had clearly told the police officers that he was conveying shoes to the PKK militants in the mountains.     The applicant maintains his version of the events. He contends that his son was arrested at around 8.30 a.m., not at 7.35 p.m. as alleged by the Government.     In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.     For these reasons, the Court, unanimously,   DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.           Michael O’Boyle   Elisabeth Palm   Registrar   President