Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21894/93

by Zülfü AKKUM, Hüseyin AKAN

and Rabia KARAKOC

against Turkey

The European Commission of Human Rights sitting in private on

5 March 1996, the following members being present:

MM. H. DANELIUS, Président

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mme G.H. THUNE

J. LIDDY

MM. M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

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 4 May 1993 by

Mr. Zülfü Akkum, Mr. Hüseyin Akan and Ms. Rabia Karakoç against Turkey

and registered on 18 May 1993 under file No. 21894/93;

Having regard to :

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

the Commission;

- the Commission's decision of 30 August 1993 to communicate the

application ;

- the observations submitted by the respondent Government on

10 February 1994 and the observations in reply submitted by the

applicants on 13 April 1994 ;

- the parties' oral submissions at the hearing on 18 October 1994;

- the information submitted by the respondent Government on

27 November 1995, 4 January and 13 February 1996 and the comments

of the applicants presented on 22 January 1996.

Having deliberated;

Decides as follows:

THE FACTS

The first two applicants, Zülfü Akkum and Hüseyin Akan, Turkish

nationals, are farmers in the village of Kursunlu. The third applicant,

Rabia Karakoç, also a Turkish national, is a housewife in the village

of Kayas.

The applicants submit the application in their own name and on

behalf of their deceased relatives mentioned below. They are

represented before the Commission by Professor Kevin Boyle and Ms.

Françoise Hampson, both university teachers at the University of Essex.

The facts of the present case have not been agreed by the

parties.

The applicants claim that the following events have occurred:

On 10 November 1992 at about 8.30 hours, the village

goat-herdsmen, Mehmet Akkum and Mehmet Akan, took the village animals

out to graze. They were accompanied by Hacire Ceylan and Hediye Akodun,

the village ox tenders.

In the meantime, Dervis Karakoç left his village, Tünekrak, with

his mother, wife and two children, to visit his sister in Cevrecik

village. When they arrived at Destek plain, they met Hediye Akodun and

Hacire Ceylan. At that point two soldiers came out of the places where

they had been lying in ambush.

The ox tenders returned to the village between 9.30 and 10.30

hours without the animals. They told the villagers that soldiers were

carrying out an operation 1 or 2 km away from the village and that the

soldiers had ordered them to go straight back to the village, leaving

the animals. They also said that Mehmet Akan and Mehmet Akkum had been

detained by the soldiers. Hacire Ceylan said that she heard Mehmet

Akan, who was a little way ahead, crying out as he was beaten.

As to Dervis Karakoç, the two soldiers shouted at him, telling

him to go with them and let the women go back to the village. Dervis

Karakoç told the women to go back to the village. The soldiers took

Dervis Karakoç by the arm and went some 40-60 metres further with him.

They kept warning the women to go back. They started beating Dervis

Karakoç.

A shot rang out. The soldiers who had been lying in ambush opened

fire in all directions. The women and children were sent home. Dervis

Karakoç's mother, the third applicant, says that she went home thinking

her son had been arrested by the soldiers. His wife says however in her

statement that the ox tenders were eye-witnesses to the killing of her

husband.

In the evening there was firing directed at the village from the

direction of the scene of the incident. The attack lasted for nearly

one hour. The villagers sheltered in their homes for safety. After the

sound of firing stopped, the villagers could not look for the two

goat-herdsmen, Mehmet Akkum and Mehmet Akan, because an operation was

still in progress and it was dark.

When the Karakoç women reached their village, they explained to

the other villagers what had happened. Although the third applicant

pleaded with them to go with her to the place where Dervis Karakoç's

body lay, no one would go because of fear.

On the morning of 11 November 1992, the villagers of Kursunlu

started to search the land in the area of the operation. They saw

animals shot and killed. Then Zülfü Akkum, as Mayor, went with 10 or

15 villagers to Dicle. The group applied to the Mayor of Dicle to

discover what had happened to the goat-herdsmen and to report to the

authorities the attack on the village and the animals. The Mayor of

Dicle was with the Leader of the Council. The latter suggested that

they request information from the Dicle Central Police Station. They

spoke to a lieutenant-colonel who said that soldiers of the Aricak

district of Elazig had carried out the operation in question. The

lieutenant-colonel spoke to someone on a walkie-talkie, but could get

no information. He said he would keep trying. Some villagers

representing the village of Kursunlu waited in Dicle trying to get

information.

A group who had remained in the village included the second

applicant, Hüseyin Akan. After the departure of the village Mayor to

Dicle, the others went to the scene of the incident and saw that the

soldiers' operation was still continuing.

The third applicant, Rabia Karakoç, says that "in the morning"

her family went to Kursunlu village and accompanied the villagers to

the place where the soldiers had been lying in ambush. 50-60 metres

further on they saw the bodies of Dervis Karakoç and his horse, which

had also been shot. There were many empty cartridges and they took

some. This suggests his body was found on 11 November. The wife of

Dervis Karakoç says that his body remained at the scene of the incident

for two days. When they had permission to collect the body, the women

took it to the village and then to Dicle. After the autopsy, the body

was returned to them for burial.

On 12 November 1992, the first applicant, Zülfü Akkum, petitioned

the Public Prosecutor to discover what had happened to Mehmet Akkum and

Mehmet Akan, but with no result. At around 14.30 hours that day, Zülfü

Akkum telephoned home and was told that the bodies of Dervis Karakoç

and Mehmet Akan had been found. The statement of Hüseyin Akan says that

the bodies were found at around midday on 13 November, following an

incident in the village earlier in the morning.

On the morning of 13 November 1992, the Company Commander of the

Dicle Central Gendarmes Station came to the village with his soldiers

and assembled the whole of the village population in the square next

to the school. Later they separated the youths from the elderly.

Addressing the young people, the Commander accused them of taking

provisions to the PKK (Kurdish Workers' Party - an armed separatist

movement) and told them to leave the village. In the meantime, some of

the soldiers were searching the village houses. The second applicant,

Hüseyin Akan, approached the Commander and said that his brother and

the other goat-herd, Mehmet Akan, were in the area of the operation.

The Commander confirmed that the two men were in the area of the

operation. Later the soldiers left.

It was midday, and all the villagers went out searching. When

they arrived at the scene of the incident, they saw that hundreds of

animals had been shot and killed. The dead body of Mehmet Akan was

there. About 100 metres away was the body of Dervis Karakoç. He had

also been shot and killed. The villagers took the bodies to the

village.

The first applicant, Zülfü Akkum, on being told of the discovery

of the bodies, immediately informed the Central Gendarmes Station in

Dicle and the Public Prosecutor of the situation. He was told to bring

the bodies to town. He asked for an ambulance. He went to the village

with an ambulance provided by the Public Prosecutor's office and took

the bodies to Dicle. There were bullet marks in the bodies of both

Mehmet Akan and Dervis Karakoç. Both had apparently been killed by

shooting. After the autopsies had been carried out, the bodies were

transported back to the village in private vehicles which the first

applicant had hired. He stayed in Dicle to enquire about the fate of

his son.

The following day, 14 November 1992, the first applicant and two

others went to the Gendarmes Station. They spoke to a captain and asked

him to look into the situation and help them. After a while, the

captain said that two bodies had been found in Elazig and one might be

that of Zülfü Akkum's son.

On Monday 16 November, Zülfü Akkum and five other villagers went

to Elazig together. They petitioned the Elazig Public Prosecutor's

Office. They were sent to the Security Headquarters. There they were

shown two photographs of the two people killed. One photograph was that

of Zülfü Akkum's son.

When the necessary legal formalities had been completed, they

collected the body which had been buried in Elazig cemetery because no

one had claimed it. They took the body back to the village and buried

it.

The body of Zülfü Akkum's son showed marks of torture. He was

covered in wounds and bruises. There were many burn marks on his body.

His fingers were broken and his left upper arm was also completely

broken.

The Government submit the following different account:

On 10 November 1992, the gendarme forces of Elazig carried out

a military operation against the militants of the PKK near the village

of Bukardi, in Elazig. Mehmet Akkum died during the fighting which

broke out between the armed militants of the PKK and the security

forces. Several documents from the PKK, ammunition for firearms and

stocks were seized in the place of the incident.

Proceedings which had been instituted against Mehmet Akkum by the

Public Prosecutor of the Kayseri State Security Court were discontinued

after his death.

On 10 November 1992, violent fighting broke out near the village

of Aricak between the gendarme forces of Dicle and the armed militants

of the PKK. Mr. Karakoç and Mr. Akan died during this fighting.

At the end of the preliminary investigation instituted with

respect of these killings the Public Prosecutor of Pula filed on

19 August 1994 a criminal action in the State Security Court of

Kayseri. The indictment concerned seven gendarmes charged with the

killing of more than one person by unidentified perpetrator.

The criminal case had been transferred to a military tribunal of

Elazig.

On 21 December 1995 the military tribunal of Elazig acquitted the

gendarmes on trial for the killing of the applicants' relatives. The

Government have not indicated whether an appeal has been lodged against

the acquittal.

The relevant domestic law and practice

The Government have submitted that the following domestic law is

relevant to the case:

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."

This provision is not subject to any restrictions even in a state

of emergency or war. The latter requirement of the provision does not

necessarily require proof of the existence of any fault on the part of

the Administration, whose liability is of an absolute, objective

nature, based on a theory of "social risk". Thus the Administration may

indemnify people who have suffered damage from acts committed by

unknown or terrorist authors when the State may be said to have failed

in its duty to maintain public order and safety, or in its duty to

safeguard individual life and property.

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."

A claim for compensation may be lodged with the courts against

the acts and decisions of the Regional Governor of the State of

Emergency.

The Turkish Constitution guarantees rights comparable to those

found in the Convention (cf. Chapters II and III, Articles 17 to 74 of

the Constitution). Constitutional and conventional rights may be

enforced by the domestic courts, if raised by the litigants.

An appeal against a ministerial decision, together with a claim

for just satisfaction, may be lodged with the local administrative

court.

Complaints by victims of criminal offences 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 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 Council of State; a refusal to prosecute is subject to an

automatic appeal of this kind.

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.

Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

Damage caused by terrorist violence may be compensated out of the

Social Help and Solidarity Fund.

The applicant points to the following legal provisions which in

themselves weaken the protection of the individual which might

otherwise have been afforded by the above general scheme:

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 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. These councils are made up of civil servants

and have been criticised for their lack of legal knowledge, as well as

for being easily influenced by the Regional Governor or Provincial

Governors, who also head the security forces.

Article 8 of Decree 430 of 16 December 1990 provides as follows:

(Translation)

"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 an individual to claim indemnity from

the State for damages suffered by him without justification."

According to the applicant, this Article grants impunity to the

Governors.

COMPLAINTS

The applicants complain of violations of Article 2 of the

Convention in that their close relatives were intentionally killed by

soldiers. They allege violations of Article 6 of the Convention on

account of a failure to institute proceedings before a tribunal against

those responsible for the killings, as a result of which the applicants

cannot bring civil proceedings arising out of these events. They

further complain under Article 1 of Protocol No 1 of the destruction

of livestock and horse. In their submission, Article 13 of the

Convention has also been violated because of the lack of an independent

national authority before which they can bring their complaints with

any prospect of success.

The first applicant Zülfü Akkum also complains of a violation of

Article 3 of the Convention on account, on the one hand, of the torture

inflicted on his son and, on the other hand, of his inability to

discover what had happened to his son.

The applicants also consider that there have been violations of

Article 14 in conjunction with Articles 2, 6, and 13 of the Convention

and Article 1 of Protocol No 1, since only Turkish citizens of Kurdish

origin are regularly exposed to violations of the Convention of the

kind referred to. They finally allege that the discrimination on

account of race violates Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 May 1993 and registered on

18 May 1993.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

30 August 1993. It decided, pursuant to Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of the application to the respondent

Government and to invite the parties to submit written observations on

admissibility and merits. The Government's observations were submitted

on 10 February 1994, after an extension of the time-limit fixed for

that purpose, to which the applicant replied on 13 April 1994.

On 27 June 1994, the Commission decided to invite the parties to

make oral submissions on the admissibility and merits of the

application at a hearing fixed for 18 October 1994.

At the hearing, the Government were represented by Mr. B. Çaglar,

Agent, Mr. S. Alpaslan, Mr. M. Özmen, Ms. D. Akçay and Mr. H. Golsong,

all counsel, and Ms. i. Boivin, Mr. i. Kovar, Mr. A. Kurudal, Mr. F.

Erdogan, Mr. Y. Kizilkaya, Mr. C. Duatepe and Ms. S.B. Ersöz, all

experts. The applicants were represented by Professor K. Boyle and Ms.

F. Hampson, both counsel, Mr. S. Aslantas, legal adviser from the

Diyarbakir Bar, and Mr. M. Yildiz, assistant.

On 19 October 1994, following the hearing of 18 October 1994, the

Commission decided to adjourn its examination of the above application

until, at the latest, its session of December 1995. The Commission

informed the Government that it would like to be kept regularly

informed of any developments in the domestic proceedings against the

accused gendarme.

On 15 September 1995, the Secretary to the Commission invited the

Government to submit any information on the developments in the

domestic proceedings against the accused gendarme.

On 27 November 1995, 4 January and 13 February 1996, the

Government submitted supplementary information. The applicant presented

his comments on 22 January 1996.

THE LAW

The application concerns the killings of three persons and of

their livestock and horse respectively.

The applicants allege that these persons were killed by Turkish

Government forces. They complain in their own name, and on behalf of

their dead relatives, of violations of Article 2 (Art. 2) (the right

to life), Article 3 (Art. 3) (freedom from inhuman and degrading

treatment), Article 6 (Art. 6) (the right of access to court), Article

13 (Art. 13) (the right to effective remedies for Convention breaches),

and Article 14 (Art. 14) (freedom from discrimination in the securement

of Convention rights) of the Convention, as well as Article 1 of

Protocol No. 1 (P1-1) to the Convention (the right to property).

The Government argue that the application is inadmissible for the

following reasons:

i. the applicants failed to exhaust domestic remedies;

ii. the application is an abuse of the right of petition; and

iii. the application is anyway manifestly ill-founded.

Exhaustion of domestic remedies

The Government submit that the applicants have 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 point out that criminal proceedings have been

brought in the State Security Court of Kayseri against a number of

gendarmes, that these gendarmes have been acquitted, and an appeal may

be lodged with the Court of cassation. The Government have not informed

the Commission whether such an appeal has in fact been lodged.

The Government also refer to

- the possibility of an appeal against a ministerial decision

before the Elazig administrative court; and

- the possibility of a claim for compensation against the

Regional Governor of the State of Emergency.

The Government assert that these remedies are effective and that

Turkish law envisages the enforcement of constitutional and Convention

rights before the domestic courts. The Government assert that there is

no administrative practice or official tolerance of the type of acts

alleged by the applicant. The aforementioned remedies represent nothing

extraordinary and are accessible and effective before independent

judicial authorities. Any suggestion that people expose themselves to

risk if they pursue these normal remedies can only be qualified as

abusive, fallacious and wholly devoid of credibility.

The applicants maintain that there is no requirement that they

pursue domestic remedies. Any purported remedy is illusory, inadequate

and ineffective for the following reasons:

- an administrative practice of unlawful killings;

- the absence of any significant case-law showing the payment of

adequate compensation in circumstances comparable to the present

case;

- the absence of successful cases against the Regional Governor for

compensation under the State of Emergency Law;

- an official attitude of legal unaccountability towards the

security forces;

- the discouragement of those who do wish to seek remedies;

- an administrative practice of not respecting the rule under

Article 13 (Art. 13) of the Convention which requires the

provision of effective domestic remedies; and

- whether or not there is an administrative practice, domestic

remedies were ineffective in this case, owing to the failure of

the legal system to provide redress.

The applicants do not deny that the procedures identified by the

Government are formally part of the Turkish legal structure, but they

contend that the Government have not shown how such procedures could

conceivably be effective for the specific circumstances of the present

application.

The Commission has noted the remedies referred to by the

Government and the remarks of the applicants as to their theoretical

nature.

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 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. 11.5.89, D.R. 61, pp. 250, 262).

The Commission notes that the incident occurred on

10 November 1992, i.e. more than three years and three months ago.

Criminal proceedings have been brought against several gendarmes but

have resulted, at first instance, in an acquittal. The Government have

not informed the Comission of any appeal against the judgement of

acquittal. In these circumstances, the Commission considers that the

applicants are not required to pursue any further remedy in addition

to the criminal proceedings brought by the public prosecutor. The

military tribunal of Elazig, acting as a first instance court in the

present case, acquitted the accused soldiers for lack of sufficient

evidence, but did not refer to any other possible perpetrators (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).

Consequently, the Commission finds that the requirement as to the

exhaustion of domestic remedies has been satisfied and that the

application cannot be rejected on the basis of Articles 26 and 27 para.

3 (Art. 26, 27-3) of the Convention.

Abuse of the right of petition

The Government maintain that the application, being devoid of any

sound judicial basis, has been lodged for the purposes of political

propaganda against the Turkish Government. Accordingly the application

constitutes an abuse of the right of petition which discredits the

legal nature of the Convention control mechanism.

The applicants reject the Government's submission and respond

that their complaints relate exclusively to violations of the

Convention which they have suffered.

The Commission considers that the Government's argument could

only be accepted if it were clear that the application was based on

untrue facts. However, this is far from clear at the present stage of

the proceedings, and it is therefore impossible to reject the

application on this ground.

As regards the merits

The Government submit that it is generally accepted in the

comparative and international law on terrorism, authorising "certain

adaptations of the liberal model", that restrictions on Convention

rights will be deemed necessary in a democratic society threatened by

terrorist violence, as being proportionate to the aim of protecting

public order.

The Government add that the threat posed to Turkey by the PKK and

its affiliations is internationally recognised, as is the need to react

firmly to it. Terrorism strikes at the heart of democracy, its

fundamental rights and the judicial and political systems. This has

been acknowledged by the Convention organs (Eur. Court H.R., Fox,

Campbell and Hartley judgment of 30 August 1990, Series A no. 182, and

Nos. 11209/84, 11234/84, 11266/84 and 11386/85, Brogan and Others v.

the United Kingdom, Comm. Report 14.5.87, para. 106). It is not for the

Convention organs to substitute their view on how a State should

conduct the necessary fight against terrorism. In this respect the

Government assert that the powers exercised by the gendarmes in this

case did not exceed the margin of appreciation conferred on States by

the Convention.

The Government maintain that there is no evidence to substantiate

the applicants' allegations against the security forces. They emphasise

that three persons have been killed in an armed clash with security

forces who were acting in self-defence.

Accordingly, the Government consider that the application is

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

(Art. 27-2) of the Convention.

The applicants maintain that their account of events was accurate

and that their Convention claims were substantiated. They contend that

the Government's submissions on the restrictions which necessarily flow

from the fight against terrorism are immaterial to the facts of the

present case. The application concerns, inter alia, the use of lethal

force in wholly unjustifiable conditions unrelated to a terrorist

attack necessitating self-defence on the part of the security forces.

There is, therefore, no reason to take into account the political

situation in the region concerned.

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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AKKUM, AKAN and KARAKOC v. TURKEY

AKKUM, AKAN and KARAKOC v. TURKEY

LEXI