Lexploria

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

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AKDENIZ v. TURKEY

AKDENIZ v. TURKEY

LEXI