Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25704/94

by Hamsa ÇIÇEK

against Turkey

The European Commission of Human Rights sitting in private on

26 February 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 8 November 1994

by Hamsa Çiçek against Turkey and registered on 17 November 1994 under

file No. 25704/94;

Having regard to :

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

the Commission;

- the Commission's decision of 20 February 1995 to communicate the

application;

- the observations submitted by the respondent Government on

16 June 1995 and the observations in reply submitted by the

applicant on 15 August 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, was born in

1930 and lives in Dernek, Lice District, Diyarbakir province. 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:

The applicant states that the following occurred:

On the morning of 10 May 1994 at about 06.00 a.m., soldiers,

connected with the Lice District Gendarme Command, raided the

applicant's village. They drove close to the village and then had to

proceed on foot because it had rained in the night and the village was

muddy. There were over 100 soldiers.

Some of the soldiers went round each house, woke up the

inhabitants and told them to assemble by the village mosque, bringing

their identity cards with them. About 400 villagers gathered by the

mosque. The soldiers took the identity cards of the male villagers and

told the women to return home. The women took their children and

returned home, leaving the men waiting by the mosque.

The applicant did not see what happened next but, according to

the accounts of male villagers who were present, the men's ID cards

were checked according to a list. Then the names were called out one

by one, the ID cards were returned and the villagers were sent home.

When the names of R. A., F. F., M. Ö., M. D. and Ali ihsan Çiçek (the

applicant's son) were called out, their ID cards were not returned to

them and they were told to leave the group and to wait on one side. The

ID card of Tahsin Çiçek (another son of the applicant) was initially

returned but he was immediately called back and sent to join the other

five people.

The soldiers left, taking the six people into custody. Witnesses

said that the soldiers took the six people in custody to Lice Regional

Boarding School. It is alleged that Tahsin and Ali Ihsan Çiçek and R.

A. were tortured there.

It appears that, on the second day of their custody, the soldiers

separated Tahsin and Ali ihsan Çiçek from the others. They said to the

others, "We have released those two, we are going to release you as

well." On the following day, the other four people were released and

they returned home. They were surprised not to find Tahsin and Ali

ihsan Çiçek there because they had been told that they had also been

released.

About 20 days following the taking of her sons into custody, the

applicant went to speak to a villager who had been released from Lice

Regional Boarding School, where she believed her sons had been

detained. She spoke to him about his period in custody. He said that

almost everyone in custody there suffered torture. She explained that

her sons were in custody there and asked whether he had seen them. She

described them. He said that two brothers had been in custody at the

same time as he was and they were the right age. A short time after

this, the applicant met another villager who had been released from

custody at Lice Regional Boarding School about a month previously. She

described her sons to him and asked whether or not he had seen them.

He said that he had only seen Tahsin. Tahsin had been in a bad

condition due to the torture he had suffered. Later, the villager had

been taken with Tahsin to Lice District Gendarme Command but he had not

seen him again.

The applicant has been told by witnesses that on 27 May 1994,

Tahsin's son Çayan (i.e. her grandson) was taken away by security

forces whilst he was sitting in the garden at the family home. Çayan

is partially sighted; he cannot see at all at night and can only see

about 1 metre in front of him in daylight.

The applicant has made many applications concerning her sons and

grandson. She went to Lice District Gendarme Command on two occasions

and asked about their whereabouts. She was told that neither they, the

district governor nor the leader of the council could do anything. The

applicant is elderly, lives in a village and cannot speak Turkish. This

limits the enquiries which she can make. She got her daughter, Feride

Çiçek, who lives in Diyarbakir, to submit verbal petitions to the Chief

Prosecutor of the Diyarbakir State Security Court. Feride Çiçek did

this on 20 July 1994. She was given a verbal reply to the effect that

her brothers and nephew (i.e. the applicant's sons and grandson) were

not in custody.

The respondent Government state the following:

No operation organised by the security forces took place in the

village of Dernek on 10 May 1994. The applicant's sons Tahsin and Ali

Ihsan Çiçek and her grandson Çayan were not taken into custody by the

the Gendarmarie of the Lice District.

COMPLAINTS

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

8, 13, 14 and 18 of the Convention.

As to the Article 2 she alleges that the unacknowledged detention

of her sons and grandson is life-threatening because there exists a

high incidence of deaths in custody, some as a result of torture. She

also complains of the lack of any effective state system for ensuring

protection of the right to life.

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

happened to her sons and grandson. She also complains of discrimination

on grounds of ethnic origin.

As to Article 5 she refers to the unlawful detention of her sons

and grandson, the failure to provide information as to the reasons for

their detention, of her sons and grandson not being brought before a

judicial authority within a reasonable time and not being able to bring

proceedings to determine the lawfulness of their detention.

As to Article 13 she alleges that there is a lack of any

independent national authority before which her complaints can be

brought with any prospect of success.

As to Article 14 the applicant alleges that her sons and grandson

have been discriminated against on the ground of their Kurdish origin

in the enjoyment of their rights under Articles 2, 3, 5 and 13 of the

Convention.

As to Article 18 she alleges that the interferences referred to

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

the ends permitted under the Convention.

The applicant maintains that there is no requirement that she

pursue alleged domestic remedies.

According to her, any alleged remedy is illusory, inadequate and

ineffective because:

a) the detention of her sons and grandson was officially organised,

planned and executed by agents of the Government;

b) there is an administrative practice of not respecting the rule

under Article 13 of the Convention which requires the provision of

effective domestic remedies;

c) 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 and the refusal of the Government to admit

that the security forces are holding the applicant's sons and grandson

in detention;

d) the applicant and her family have done everything possible to

exhaust domestic remedies by making enquiries at the Lice District

Gendarme Command and by submitting a petition to the Public Prosecutor

of Diyarbakir.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 November 1994 and registered

on 17 November 1994.

On 20 February 1995 the Commission decided to communicate the

application to the Government and ask for written observations on the

admissibility and merits of the application.

The Government's observations were submitted on 16 June 1995

after the expiry of the extension in the time-limit on 9 June 1995. The

applicant's observations in reply were submitted on 15 August 1995. The

Government were asked for a further clarification on a specific matter

but did not answer within the time-limit.

THE LAW

The applicant complains of the taking into custody, the detention

and the subsequent disappearance of her two sons and a grandson. She

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 Commission notes that the Government raised no objection as

to non-exhaustion of domestic remedies.

It is the normal practice of the Commission, where a case has

been communicated to the respondent Government, not to declare the

application inadmissible for failure to exhaust domestic remedies,

unless this matter has been raised by the Government in their

observations.

It follows that the application cannot be rejected on the ground

that the domestic remedies have not been exhausted.

As regards the merits

The Government deny that any operation organised by the security

forces took place in the village of Dernek on 10 May 1994. They submit

that the applicant's two sons and grandson were not taken into custody

by the Gendarmerie of the Lice District. They cast doubt on the

credibility of the applicant's allegations in that the applicant has

not adduced any corroborative evidence to support them. They submit

that the statements submitted to the Commission in support of the

allegations were extracted or fabricated by extrajudicial means.

The applicant maintains her account of events which, she states,

is supported by direct evidence and the information given by

eyewitnesses. She refutes the Government's submission that her

statements were extracted or fabricated.

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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CICEK v. TURKEY

CICEK v. TURKEY