Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27699/95

by Hatice TEKDAG

against Turkey

The European Commission of Human Rights sitting in private on

25 November 1996, 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

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

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 12 May 1995 by

Hatice Tekdag against and registered on 26 June 1995 under file

No. 27699/95;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 3 December 1995 to communicate the

application ;

- the observations submitted by the respondent Government on 2 May

1996 and the observations in reply submitted by the applicant on

8 July 1996 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, resident

in Diyarbakir. She is the wife of Ali Tekdag, who disappeared in

Dagkapi (Turkey) on 13 November 1994. She is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex, England.

A. Particular circumstances of the case

The applicant claims that the following events occurred.

On 13 November 1994 at about 11.00 am the applicant and her

husband A.T. went out to the shops near where they lived in the village

of Küçükkadi, Diyarbakir. After they got off the bus at Dagkapi A.T.

told the applicant he had something to do and that she should wait for

him for about five minutes. He went off in the direction of the

Municipal Council Buses.

A.T. returned along the road in less than two minutes but instead

of coming to meet the applicant he walked right past her without

looking at her and when she called out to him he said "Go" and

signalled with his hands. He was walking into a street nearby and was

being followed by people with walkie-talkies and long-barrelled guns.

There was gunfire and people (including the applicant) threw

themselves to the ground. When the gunfire stopped plainclothes

policemen arrived at the scene. They took A.T. into a nearby building

and within a few minutes took him away in a police vehicle. A.T. was

bleeding from where he had hit his head on throwing himself to the

ground when the shots had been fired.

Since her husband was taken away on that occasion the applicant

has never seen him. The applicant alleges that according to eye-

witness S.D. who was held in custody at the Diyarbakir Rapid Forces

Directorate, A.T. had been held in the same prison. The applicant

alleges that in November 1994 other persons saw A.T. while in

detention, but they were afraid to testify.

On 16 November 1994 the applicant applied to the Chief State

Prosecutor of the Diyarbakir State Security Court for news of her

husband, but was sent away by the police. That happened every day for

30 days until she was taken to see the Chief Prosecutor Bekir Selçuk.

The applicant explained to the Prosecutor what had happened to

her husband. He said he would deal with the matter but when the

applicant went back a few days later he had apparently not found out

anything at all about what had happened to her husband. The applicant

reported that people had seen her husband in prison, but they were

afraid to give statements. However, she indicated that an eye-witness

of her husband's detention, S.E., was willing to make a statement. The

Prosecutor replied that he wanted to know the names of the other

witnesses and added that the security forces had not abducted her

husband.

After 40 days the applicant met the provincial governor Dogan

Hatipoglu and explained to him what had happened. He said he would

make enquiries. When the applicant returned to see Dogan Hatipoglu a

few days later he said he did not have the means to investigate.

After some time the applicant, accompanied by her daughter Nuran

(aged 21), went back to see the Prosecutor, who denied that A.T. had

been taken into custody and said that A.T. had carried out numerous

illegal actions. Eventually, the Prosecutor stated that if the

applicant's husband was released from custody, he would open an inquiry

as to those who had taken him into custody.

A.T. had previously been taken into custody by the Turkish

security forces 19 times and on 17 of those occasions had been put in

prison. He had changed his identity and taken the name Mehmet Aslan

because previously he was being taken into custody as soon as the

police saw that his surname was Tekdag.

Despite the above-described actions taken by the applicant, no

investigation appears to have been opened by the Turkish authorities

into the disappearance of the applicant's husband.

The respondent Government state as follows.

The first written request for an inquiry into A.T.'s

disappearance was signed by his mother and was dated 5 January 1995.

The request was addressed to the Provincial Governor of Diyarbakir, who

sent it to the State of Emergency Bureau who, in its turn, sent it to

the Diyarbakir City Police Headquarters. The latter's reply on 9

January 1995 denied that A.T. had been taken into custody.

A letter from the Diyarbakir State Security Court Public

Prosecutor's Office to the Ministry of Justice indicates that the

applicant had been told that A.T. had never been taken into custody and

that she would have received a written answer if she had asked for it

in writing.

A.T.'s illegal change of identity may indicate that he is still

using a false identity and that he has joined the terrorist

organisation, the PKK.

The applicant's daughter was arrested on 7 November 1995 on

charges of collaboration with the PKK.

An investigation into the applicant's brother's death shows that

he was killed by the terrorist group Hizbullah.

B. Relevant domestic law and practice

Civil and administrative procedures

Article 125 of the Turkish Constitution provides :

< 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 :

"...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."

Any illegal act by civil servants, be it a crime or 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, 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), 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

not to institute criminal proceedings.

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 having the force of law and 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 Regional Governor of

the State of Emergency by decrees, especially Decree 285, as amended

by Decree 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 403 of 16 December 1990 provides as follows :

"No criminal, financial or legal responsibility may be claimed

against the State of Emergency Regional Governor or a Provincial

Governor 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 compensation from

the State for damage suffered by them without justification."

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 13,

14 and 18 of the Convention.

As to Article 2 she alleges that her husband has been secretly

detained by agents of the State and that there is a high incidence of

deaths in custody. She alleges that the Government failed to protect

her husband's right to life. She further refers to the lack of any

effective system for ensuring protection of the right to life in

domestic law.

As to Article 3 she refers to her inability to discover what has

happened to her husband.

As to Article 5 she refers, in relation to her husband, to the

failure to be informed as to the reasons for his detention, not being

brought promptly before a judicial authority and not being able to

bring proceedings to determine the lawfulness of his detention.

As to Article 13 she 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 in conjunction with Articles 2, 3 and 5 she

complains of an administrative practice of discrimination on grounds

of race or ethnic origin.

As to Article 18 she maintains that the interferences referred

to above with the exercise of Convention rights are not designed to

secure the ends permitted under the Convention.

As regards exhaustion of domestic remedies she maintains that

there is no requirement that she pursue such remedies. In her opinion

there is no effective remedy in South-East Turkey in relation to any

of her complaints.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 May 1995 and registered on

26 June 1995.

On 3 December 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 2 May

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 8 July 1996.

THE LAW

The applicant complains about the taking into custody and

disappearance of her husband. She invokes Article 2 (Art. 2) (the

right to life), Article 3 (Art. 3) (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)

(prohibition on discrimination) and Article 18 (Art. 18) (the

prohibition on using authorised Convention restrictions for ulterior

purposes) of the Convention.

The Government submit that the eastern part of Turkey is under

State of Emergency rule, as the PKK is carrying out terrorist

activities in that part of the country. Killings and kidnappings by

unidentified persons and various other violent acts are common in

situations of terrorism. However, the judicial system operates in such

a way as to find the perpetrator of each crime. An application

concerning a disappearance should be directed to the Public

Prosecutor's office, which registers it under preliminary investigation

files.

The Government deny that the applicant's husband has been

detained and submit that the applicant's account of the facts has not

been corroborated by any witnesses. They submit that the applicant was

not able to provide the names or addresses of the persons who allegedly

saw A.T. while in detention. The Government finally allege that A.T.

is a sympathiser of the PKK and that he had changed his identity and

probably joined the PKK. The Government conclude that the application

is manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

The applicant maintains her account of events.

The Commission notes that while the Government mention the

possibility, in cases of disappearances, of filing a written

application with the competent prosecutor, they do not claim that the

applicant failed to comply with the requirements as to the exhaustion

of domestic remedies provided for in Article 26 (Art. 26) of the

Convention, and they only ask for the rejection of the application as

manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention. It is the normal practice of the Commission, where an

application has been communicated to the respondent Government, in part

or as a whole, not to declare the complaint concerned inadmissible for

failure to exhaust domestic remedies, unless this matter has been

raised by the Government in their observations. The Commission must

therefore deal with the substance of the applicant's complaints.

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, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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TEKDAG v. TURKEY

TEKDAG v. TURKEY