Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25754/94

by Mehmet HARAN

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 11 November 1994

by Mehmet Haran against Turkey and registered on 22 November 1994 under

file No. 25754/94;

Having regard to :

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

the Commission;

- the Commission's decision of 27 February 1995 to communicate the

application;

- the observations submitted by the respondent Government on

11 August 1995 and the observations in reply submitted by the

applicant on 4 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish national, is a farmer in the village of

Agilli in Lice. He submits the application in his own name and on

behalf of his deceased son. He 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:

A. The particular circumstances of the case

The applicant states that the following occurred:

The applicant used to live in the Çelebi hamlet of Agilli village

in Lice. Some time ago the applicant's house, with other houses in the

hamlet, was burned down by security forces.

The applicant then settled in Agilli village, near to his hamlet

which had been destroyed, and his son Vahdettin Haran settled in Lice

district.

On 12 May 1994 Vahdettin Haran had come to Agilli village in

order to help prune the applicant's vines. During the day, gendarmes

and soldiers arrived at the village and collected all the villagers

together in the school grounds. They then started to burn the houses.

The applicant heard soldiers saying: "We can only overcome terrorism

by burning all the villages and driving the people away from the

region."

At about 11 am, as houses were still being burned, the applicant

heard the sound of gunshots coming from his vineyard. Because he was

surrounded by gendarmes and soldiers, he could not go to look. It

appeared that the whole area around the village was under the control

of the gendarmes and soldiers.

The gendarmes and soldiers left later in the day. In the evening

villagers who came from the direction of the vineyard said that the

gendarmes had taken someone away with them and gone towards Lice. The

applicant feared that this might have been Vahdettin Haran, but did not

have the courage to go to the vineyard to look.

On the morning of the following day, 13 May 1994, the applicant

sent his other children to the vineyard. When they arrived there, they

found Vahdettin Haran's corpse.

Later on 13 May 1994, the applicant went to Lice and reported the

killing to the Lice State Prosecutor. The State Prosecutor told the

applicant that he would not be able to come to the village as it would

be too dangerous for him, but that an autopsy would be made if the body

could be brought to Lice.

The applicant took the body of Vahdettin Haran to Lice and an

autopsy was carried out by the State Prosecutor. No information or

official documents were given to the applicant.

Initially, the applicant and his friends were not even permitted

to take the body away, but later officials from the State Prosecutor's

office said that the applicant could collect the body, provided not

more than two people came. The applicant arranged the burial of

Vahdettin Haran at the village.

The respondent Government state as follows.

On 12 May 1994 an official autopsy was conducted on the body of

Vahdettin Haran. The autopsy report indicated that the death was caused

by bullet wounds.

On 6 June 1994 the Public Prosecutor of Lice initiated a

preliminary investigation into the death of Vahdettin Haran. The

investigation is still pending.

B. Relevant domestic law and practice

The Turkish Criminal Code contains provisions dealing with

unintentional homicide (Articles 452, 459), intentional homicide

(Article 448) and murder (Article 450).

For 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 authoritites. The public

prosecutor and the police have a duty to investigate crimes reported

to them, the former deciding, pursuant to Article 148 of the Code of

Criminal Procedure, whether a prosecution should be initiated.

COMPLAINTS

The applicant considers that there have been violations of

Articles 2, 3, 6 and 14 of the Convention.

The applicant complains of a violation of Article 2 of the

Convention on account of the intentional killing of his son by the

security forces. He also alleges a violation of this provision on

account of the inadequate protection of the right to life in domestic

law.

The applicant complains of a violation of Article 3 of the

Convention on account of the grief and torment amounting to inhuman and

degrading treatment suffered by him as a result of the death of his

son.

The applicant alleges a violation of Article 6 of the Convention

on account of the failure to institute proceedings before a tribunal

against those responsible for the killing of his son, as a result of

which the applicant cannot bring civil proceedings arising out of these

events.

The applicant also considers that there have been violations of

Article 14 of the Convention in conjunction with Articles 2, 3 and 6

of the Convention, since only Turkish citizens of Kurdish origin are

regularly exposed to violations of the Convention of the kind referred

to.

The applicant's arguments about exhaustion of domestic remedies

are as follows:

The applicant maintains that there is no requirement that he

pursue alleged domestic remedies. Any alleged remedy is in his opinion

illusory, inadequate and ineffective because:

a) there is every reason to believe that the operation which led to

the killings in question in this case were executed by agents of the

State;

b) there is strong evidence that such acts have been repeated, and

that they have received official tolerance; in such circumstances,

there is an administrative practice giving rise to a presumption that

the local remedies are not effective;

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.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 November 1994 and registered

on 22 November 1994.

On 27 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 11 August 1995

after one extension in the time-limit. The applicant's observations in

reply were submitted on 4 October 1995.

THE LAW

The applicant alleges that his son was killed in circumstances

for which the State is responsible. He invokes Article 2 (Art. 2) (the

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

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

and Article 14 (Art. 14) (prohibition on discrimination) of the

Convention.

Exhaustion of domestic remedies

The Government submit that the application is inadmissible since

the applicant has failed to exhaust domestic remedies as required by

Article 26 (Art. 26) of the Convention before lodging an application

with the Commission.

The Government point out that the preliminary investigation

initiated by the Public Prosecutor of Lice into the killing of the

applicant's son is still pending.

The applicant maintains that there is no requirement that he

pursue domestic remedies. Any purported remedy is illusory, inadequate

and ineffective since, inter alia, the killing of the applicant's son

was planned and executed by agents of the State. He refers to an

administrative practice of unlawful killings giving rise to a

presumption that the local remedies are not effective.

The applicant further argues that, 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.

In respect of the investigation by the Public Prosecutor of Lice,

the applicant submits that the Public Prosecutor has had adequate time

to complete his investigation and that the file is simply being left

open with no ongoing inquiries being conducted.

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 on the part of Turkish

authorities tolerating abuses of human rights of the kind alleged by

the applicant, because 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 while the Government refers to the

pending inquiry by the public prosecutor into the death of the

applicant's son on 6 June 1994, almost one year and eight months have

elapsed since the killing and the Commission has not been informed of

any progress having been made in the investigation. In view of the

delays involved and the serious nature of the crime, the Commission is

not satisfied that this inquiry, in the prevailing circumstances, can

be considered as furnishing an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention.

The Commission finds that in the circumstances of this case the

applicant is not required to pursue any other legal remedy in addition

to the public prosecutor's inquiry (see eg. No. 19092/91, Yagiz v.

Turkey, Dec. 11.10.93, D.R. 75, p. 207). The Commission concludes that

the applicant should be considered to have complied with the domestic

remedies rule laid down in Article 26 (Art. 26) of the Convention.

Consequently, the application cannot be rejected for non-exhaustion of

domestic remedies under Article 27 para. 3 (Art. 27-3) of the

Convention.

As regards the merits

The Government have not presented any observations on the

substance of the applicant's complaints beyond asserting that they are

under investigation by the public prosecutor of Lice.

The applicant maintains his account of the events.

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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HARAN v. TURKEY

HARAN v. TURKEY

LEXI