Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24396/94

by Besir TAS

against Turkey

The European Commission of Human Rights sitting in private on

5 March 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

Mrs. G.H. THUNE

MM. J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

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 7 June 1994 by

Besir TAS against Turkey and registered on 14 June 1994 under file No.

24396/94;

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

24 February 1995 and the observations in reply submitted by the

applicant on 3 May 1995;

- the parties' oral submissions at the hearing on 17 January 1996;

- the documents submitted by the respondent Government on

9 February 1996;

- the comments in reply submitted by the applicant on

23 February 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin. He was born

in 1943. He is represented before the Commission by Professor Kevin

Boyle and Ms. Francoise Hampson, both 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's son, Muhsin, had been living away from home for

about two years. The applicant was told that his son had been

apprehended on 14 October 1993, following a clash with police in the

Cizre district of Sirnak province in which he had been injured in his

legs.

The applicant was called to the Security Directorate of the town

where he lives. He was asked the whereabouts of his son. He said that

his son had gone to Diyarbakir to work, following his military service.

The police told him that Muhsin had been apprehended after a clash.

On 17 October 1993, the applicant went to Cizre to enquire about

his son. At Cizre he met the Prosecutor and submitted a petition. The

Prosecutor told him that his son was under their custody and that he

would be brought before a court. When he went to Cizre again 15 days

later, the Prosecutor told him that the 15 day police custody period

had been extended and told him to come back in another 15 days. He gave

another petition to the Cizre District Gendarme Command. The applicant

states that both petitions were kept by the authorities and for this

reason he could not present these petitions to the Commission.

A month after his son was taken into custody, the applicant went

to Cizre and met the Prosecutor again. The Prosecutor said that the

reply to the petition had come from the Gendarmes. The Gendarmes said

that they had taken the applicant's son somewhere on Gabar mountain for

a visit to the scene on 9 November 1993 and, whilst there, a clash had

broken out and the applicant's son had fled.

The applicant went to Cizre again on 18 January 1994 and met the

Prosecutor. He was told that a dismissal decision had been taken on

Muhsin's file and that it had been sent to Diyarbakir State Security

Court on 13 December 1993 under number 93/240. The file number of the

State Security Court is 93/6057. The case is being investigated by

Prosecutor Ãœnal Haney.

According to the applicant, since his son is apparently not in

custody, the Prosecutor will either not proceed until he is arrested

or will issue a warrant for his arrest.

The applicant believes that his son was killed whilst in the

custody of the security forces.

The respondent Government state as follows.

Muhsin Tas was apprehended on 14 October 1993 and found in the

possession of a kalashnikov assault rifle, a handgun and ammunition.

He had received a bullet wound in the clash between the PKK and State

security forces. He was treated at Cizre State hospital, the medical

record of which indicated that the wound was not life-threatening. From

Cizre, he was taken on the same day to the military hospital at Sirnak

where the entry record indicated that his right knee was injured in

that the lateral femural condyle was fractured and the infra patellar

tendon was partially cut. The applicant's leg was put in splints.

On 15 October 1993, the district gendarme commander made a

written request to the Prosecutor for Cizre to hold Muhsin Tas,

referred to as having a code name "Hanamir", for a 15 day interrogation

period. Permission was granted. A request for a further 15 day period

was granted.

On 19 November 1993, the gendarme commander reported to the

Sirnak governor stating that during his interrogation Muhsin Tas had

confessed that he knew certain hideouts used by the PKK in the Gabar

mountain. The gendarmes carried out a search operation on

9 November 1993 taking Muhsin Tas with them. The unit came under heavy

attack from the PKK on a hill (known as 1334). In the commotion that

followed, Muhsin Tas took advantage of the fading light and rough

terrain to make his escape. The report concluded that Tas had most

probably rejoined the PKK.

The investigation concerning the applicant's son is still pending

before the Diyarbakir State Security Court (No. 1993/6057) and may lead

to a prosecution if he is again apprehended. There is a further

investigation (No. 1995/665) pending before the Sirnak public

prosecutor, which was instituted in response to the applicant's

complaints to the Commission.

By statements dated 4 November 1995, two former members of the

PKK allege that Tas escaped from the security forces while on Gabar

mountain and came to rejoin the PKK, shortly afterwards moving to a PKK

camp in Northern Iraq.

B. Relevant domestic law and practice

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), and 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

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 lives or damaging property, if they have not followed

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 the

Procedure of Military Courts).

COMPLAINTS

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

14 and 18 of the Convention.

As to Article 2, the applicant believes that his son was killed

whilst in the custody of the security forces. He alleges that because

of the administrative practice of torture and the high incidence of

deaths in custody, unacknowledged detention in the hands of the State

in South-East Turkey is life-threatening. He also complains of the lack

of any effective system for ensuring protection of the right to life

and of the inadequate protection of the right to life in domestic law.

As to Article 3, he claims, in relation to his son, that the

disappearance is a form of torture. He also complains of his inability

to discover what had happened to his son and of discrimination on

grounds of race or ethnic origin in relation to both himself and his

son.

As to Article 5, the applicant complains, in relation to his son,

of his not being brought before a judicial authority within a

reasonable time and of not being able to bring proceedings to determine

the lawfulness of his detention.

As to Article 13, he 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, he complains of an administrative practice of

discrimination on grounds of race or ethnic origin in the enjoyment of

the rights guaranteed under Articles 2, 3 and 5 of the Convention.

As to Article 18, he claims that the interferences in the

exercise of his Convention rights and those of his son are not designed

to secure the ends permitted under the Convention.

As regards the exhaustion of domestic remedies, the applicant

maintains that there is no requirement that he pursue alleged domestic

remedies. He asserts that any alleged remedy is illusory, inadequate

and ineffective because:

- his son's detention was officially organised, planned and

executed by the agents of the State;

- there is an administrative practice of non-respect of the rule

which requires the provision of effective domestic remedies;

- 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;

- alternatively, the applicant has done everything he can do to

exhaust domestic remedies by submitting petitions to the Prosecutor and

the District Gendarme Command and raising his son's disappearance with

every conceivably relevant authority; the fact that it has yielded no

result confirms the ineffectiveness of any alleged remedy.

The applicant seeks a guarantee of safety for himself and for

those who have assisted him in pursuing his case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 June 1994 and registered on

14 June 1994.

On 11 October 1994, 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 24 February 1995

after one extension in the time-limit. The applicant submitted

observations in reply on 3 May 1995.

On 11 September 1995, the Commission decided to invite the

parties to make submissions at an oral hearing.

On 16 November 1995, the Government provided further information

and documents.

At the oral hearing, held on 17 January 1996, the parties were

represented as follows. The Government were represented by Mr. Özmen

and Mr. Alpaslan, Co-Agents and Mr. Kurudal and Mr. Polat as Advisers.

The applicant was represented by Ms. Hampson, counsel and Ms. Reidy,

legal assistant.

Following the submissions of the parties at the hearing, the

Commission decided to adjourn the case at the request of the Government

in order that the Government provide, within two weeks, documents

relating to the detention of the applicant's son.

On 9 February 1996, the Government submitted copies of the

documents to the Commission's Delegates in Ankara.

By letter dated 23 February 1996, the applicant submitted

comments on the documents provided by the Government.

On 5 March 1996, the Commission resumed its deliberations in the

case.

THE LAW

The applicant complains of the taking into custody, the detention

and subsequent disappearance of his son. He invokes Article 2 (Art. 2)

(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 13 (Art. 13) (the right to effective

national remedies for Convention breaches), Article 14 (Art. 14) (the

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

prohibition on using authorised Convention restrictions for ulterior

purposes) of the Convention.

Exhaustion of domestic remedies

The Government contend 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 Government submit in this respect that there is an

investigation (No. 1993/6057) opened at the Diyarbakir State Security

Court concerning the applicant's son which may result in his

prosecution if he is apprehended again. Further, they contend that the

applicant never made any written petition to the Cizre public

prosecutor, otherwise a preliminary investigation file would have been

opened. In any event, in response to the applicant's complaint to the

Commission, the Sirnak public prosecutor started a preliminary

investigation (No. 1995/665) which aimed at investigating the

disappearance of Muhsin Tas. That investigation is still pending.

The applicant disputes the relevance of a potential criminal

prosecution against the applicant's son to a complaint that he had been

killed in custody. He submits that he gave the Cizre public prosecutor

two petitions and appealed to him on two further occasions for

information about his son. He was referred to the pending criminal

investigation and told that his son had escaped while in custody. The

applicants submits that there is nothing else he could do to oblige the

authorities to investigate further his son's disappearance in custody,

the attitude of the investigatory authorities being to accept the claim

of the security forces and that there is and has been no bona fide

investigation into the disappearance.

The applicant would further submit that the facts of this case,

and 44 other cases concerning South-East Turkey declared admissible by

the Commission, indicate that there is an administrative practice of

a failure to provide effective domestic remedies.

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 does not deem it necessary to determine whether

there exists an administrative practice of the kind alleged by the

applicant since it agrees with the applicant that it has not been

established that he had at his disposal adequate remedies to deal

effectively with his complaints.

The Commission notes that in the present case the applicant

states that he made two petitions to the public prosecutor in Cizre

with reference to the detention of his son and that he appealed to him

on two further occasions. While there may be a pending file at the

Diyarbakir State Security Court concerning the applicant's son dating

from the time of his disappearance in 1993, it appears to concern the

allegations against the son's PKK involvement rather than the

applicant's allegations as to his continued detention and fate. The

Government has also referred, at the oral hearing, to an investigation

instituted by the Sirnak public prosecutor into the disappearance. The

Commission observes however that this began only recently in 1995 and

was in response to the communication of the application to the

Government by the Commission. It does not consider that this can be

regarded as part of the ordinary process of exhaustion of domestic

remedies by an applicant for the purposes of Article 26 (Art. 26) of

the Convention.

The Commission finds that in the circumstances of this case the

applicant can be regarded as having brought his complaints before

relevant and competent authorities. Since neither the pending

investigations can be regarded as relating to the exhaustion of

domestic remedies in respect of those complaints, it concludes that the

applicant may be said to have complied with the domestic remedies rule

laid down in Article 26 (Art. 26) of the Convention and, consequently,

the application cannot be rejected under Article 27 para. 3

(Art. 27-3).

As regards the merits

The Government deny that the applicant's son has been retained

in custody and submit that the applicant's allegations are without any

substantiation. They state that the evidence indicates that the

applicant's son is a suspected member of the PKK and that he escaped

from custody when escorted by gendarmes on reconnaissance in the

mountains. Statements made by former members of the PKK indicate that

the applicant's son had taken refuge in camps in Iraq after his escape.

As regards the complaints under Article 5 (Art. 5) of the

Convention, the Government submits that it has derogated from this

provision pursuant to Article 15 (Art. 15) of the Convention, such

derogation applying to this area of South-East Turkey where the extent

and nature of the terrain render an extended period of custody

necessary in order to cope with the collecting of evidence in relation

to terrorist crime.

The applicant maintains his account of events. He refers to the

fact that his son had been injured in one or both legs and that after

26 days in custody under interrogation he would have been unlikely to

be able to run fast. He finds the Government's version, which has an

injured man escaping from under close guard, entirely lacking in

credibility. Concerning his complaints under Article 5 (Art. 5) of the

Convention, he submits that, notwithstanding the derogation relied on

by the Government, the detention of his son for at least 26 days (on

the version of the Government) in circumstances disclosing an absence

of the necessary safeguards against abuse discloses a clear violation

of this provision.

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 ADMISSIBLE, without prejudging the merits, the

applicant's complaints relating to the detention of his son;

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's remaining complaints.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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TAS v. TURKEY

TAS v. TURKEY