Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25801/94

by Z.D.

against Turkey

The European Commission of Human Rights sitting in private on

23 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

Mr. M. DE SALVIA, Deputy 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 2 May 1994 by Z.D.

against Turkey and registered on 29 November 1994 under file No.

25801/94;

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 August 1995 and the observations in reply submitted by the

applicant on 3 November 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1931, is a Turkish national of Kurdish

origin. She is a housewife and lives in Diyarbakir. She is represented

before the Commission by Professor Kevin Boyle and Ms Françoise

Hampson, both university teachers at the University of Essex.

The facts as submitted by the parties may be summarised as

follows.

Particular circumstances of the case

The applicant gives the following account.

The applicant was resident in Çiftlibahçe village, Hazro

district, Diyarbakir province. On the morning of 8 November 1993, at

7.30 hours, a raid was carried out on the village by soldiers from

Hazro District Gendarme Station and protectors attached to that

Station. The applicant knows the names of six of the protectors

involved: Haki, Chief Protector of Kirmatas village, Faki, Chief

Protector of Sarierik village, Ali, Chief Protector of Mesebaglar

village, and Haci Hüseyin, Haci Galip Ramazan and Muharrem from

Kavaklibogaz village. There were about 300-350 attackers. Before

reaching the village, the group had stopped a minibus and taken the

people and their possessions out.

The security forces rounded up the people of the village (about

500 people or 120 households) and took them about 1 km away from the

village. They made the 60-70 men walk in pairs. Some of the women and

children were left in front of their homes and others were in the open,

away from the village. The applicant was in the open. Smoke started to

come from the village. The Hazro Gendarme Unit Commander said "We came

in July and left your tobacco fields with no produce. You went off and

engaged advocates for money and made complaints against us. You gave

your money to advocates and you'll keep doing that. I will say this to

you. Here, the State is mine; the Government is mine; the advocates are

mine. No one can do anything to me at all. You have given the money in

your possession to advocates so you can be poverty-stricken. I am very

happy. If you don't empty this village within seven days, I will kill

you and pass everyone off as terrorists." (In the operation they had

organised in July, the security forces had made the villagers pull up

their tobacco at gunpoint and left them with no produce. The villagers

wrote petitions about the incident before going to advocates but they

tore up the petitions for determination of damages for fear of the

threats from the security forces.)

As the Unit Commander was speaking, the soldiers and protectors

in the village were pouring petrol over the houses and setting fire to

them, in some cases with the household goods inside and, in other

cases, after having removed the contents. They burned 40-50 houses.

They burned the applicant's house with everything in it: tobacco,

wheat, barley, lentils, winter provisions, household goods, a

refrigerator, television set etc. The men were kept lying face down on

the ground for 11/2-2 hours. The security forces took Ahmet Çakici off

with them and, telling the villagers to go and put out the fires, they

left the village.

The applicant identified 47 people whose homes were destroyed.

The applicant's home was in ruins. The applicant's son had left the

village six weeks earlier and rented a house in Diyarbakir. The

applicant, together with her eleven year old granddaughter who was

staying with her at the time of the incident, joined her son in

Diyarbakir. Twelve of them live in a four-roomed house. The applicant

and her son were farmers in the village. Neither she nor her son knew

any other work. They cannot obtain work.

No inquiry has been opened into the incident. Neither the

applicant nor any other villager has made any application to an

institution because they were threatened. The applicant wanted to go

back to the village one more time after leaving it and wanted to take

photographs of the burnt houses. The villagers were not allowed into

the village. They were told "If you don't want us to kill you, don't

come back here again".

The respondent Government state that the information obtained

from the Turkish authorities contradict the applicant's allegations.

A security operation was carried out in the applicant's village on 8

November 1993 but the houses of the village were not damaged at all.

As regarded the alleged taking into custody of Ahmet Çakici, he was

pursued by the security forces on account of his activities as a member

of the mountains branch of the PKK, but was neither captured not taken

into custody. An identity card belonging to him was found on the hill

"Killibogan" where an intense armed clash between terrorists and the

security forces took place on 17-19 February 1995.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 6, 8,

13, 14 and 18 of the Convention and Article 1 of the Protocol No. 1 to

the Convention.

As to Article 2 she claims that she was the victim of life-

threats by the Hazro gendarme commander unit. She alleges that the

State, in failing to exercise the requisite control over the security

forces, did not respect its obligation to protect her right to life.

As to Article 3 she maintains that clearing the villages is a

form of collective punishment, amounting to inhuman and degrading

treatment. She also alleges that the discrimination on grounds of race

is of such a nature and severity as to constitute independent

violations of Article 3.

As to Article 5 she refers to complete lack of security of the

person.

As to Article 6 she complains of the failure to initiate

proceedings before an independent and impartial tribunal against those

responsible for the destruction of her village as a result of which she

cannot bring civil proceedings arising out of the deprivation of her

property.

As to Article 8 she refers to the destruction of her home.

As to Article 13 she complains of the lack of any authority

before which her complaints can be brought with any prospect of

success.

As to Article 14 she complains of discrimination in the enjoyment

of her rights under Articles 2, 3, 5, 6, and 8 of the Convention and

Article 1 of the Protocol No 1. She refers to an administrative

practice of discrimination on account of race or ethnic origin.

As to Article 18 she alleges that the restrictions on all the

rights she has complained of have been imposed for purposes

incompatible with the Convention.

As to Article 1 of the Protocol No. 1 she complains of the

destruction of her home and possessions.

As to the exhaustion of domestic remedies she submits that no

remedies are effective in South-East Turkey against the acts of the

security forces.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 May 1994 and registered on

29 November 1994.

On 27 February 1995, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the case.

The Government's observations were submitted on 11 August 1995,

after the expiry of the extension in the time-limit on 23 July 1995.

The applicant submitted observations in reply on 3 November 1995 after

an extension of the time-limit.

THE LAW

The applicant complains that the security forces carried out a

raid on her village during which her home and property were destroyed.

She invokes Article 2 (Art. 2) of the Convention (respect for the right

to life), Article 3 (Art. 3) (the prohibition on inhuman and degrading

treatment), Article 5 (Art. 5) (the right to liberty and security of

person), Article 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) (the 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 this

application:

1. they challenge the authenticity of the application;

2. they submit that the applicant's complaints have not been

submitted to the national authorities.

1. Authenticity of the application

The Government submit that there is serious doubt as to the

credibility of the statement put forward as the basis of the

applicant's complaints. They allege that Rozan Alicioglu who took the

purported statement from the applicant is working for the PKK in

Switzerland and that other members of her family are known to be

involved in the PKK. The Government point out that the statement

allegedly taken from the applicant is neither signed nor thumbprinted.

The applicant's representatives refute the allegations. They

submit that Rozan Alicioglu took down the applicant's statement when

she came to the Human Rights Association in Diyarbakir and while it is

not thumbprinted, the original statement was accompanied by a

thumbprinted form setting out the applicant's personal information

(name, age, address etc) and also by a thumbprinted letter of

authority.

The Commission does not consider that the absence of a signature

or thumbprint from the applicant on the statement of facts and

complaints submitted at the same time as a thumbprinted letter of

authority and a thumbprinted form of personal information is sufficient

ground to cast doubt on the authenticity of the application introduced

in the name of the applicant. Nor are the other allegations made by the

Government supported at this time by any material which would

substantiate any claim as to the falsity of the application. The

Commission will therefore proceed with its examination of the

application.

2. Exhaustion of domestic remedies

The Government submit that the applicant has failed to submit her

complaints to the national judicial authorities. The Commission has

treated this as a submission that the 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.

The applicant maintains that there is no requirement that she

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. She refers to the situation in South-East Turkey which is

such that remedies are theoretical and illusory and alleges a lack of

genuine investigations by public prosecutors and other competent

authorities; an 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.

There is, in the applicant's submission, an administrative practice of

non-respect of the rule which requires the provision of effective

domestic remedies.

The applicant also submits that she had a well-founded fear of

making complaint to the authorities. She refers to a previous incident

in July 1993, when the security forces set fire to their tobacco crop

and the villagers, under intimidation, tore up the petitions which

they had intended to submit. She states in addition that when she and

other villagers tried to return to the village to take photographs of

the damage they were not allowed into the village and were warned that

if they did not want to be killed they should not come back.

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 of the kind alleged by the

applicant, because it agrees with the applicant that it has not been

established that she had at her disposal adequate remedies under the

state of emergency to deal effectively with her 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. 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 state that the information obtained from the

Turkish authorities contradict the applicant's allegations. While

there was an operation on 8 November 1993, the Government deny that the

village has been destroyed as alleged.

The applicant maintains her account.

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, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Deputy Secretary to the Commission President of the Commission

(M. DE SALVIA) (S. TRECHSEL)

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Z.D. v. TURKEY

Z.D. v. TURKEY