Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24490/94

by Ahmet SARLI

against Turkey

The European Commission of Human Rights sitting in private on

28 November 1995, 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

B. CONFORTI

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 23 June 1994 by

Ahmet SARLI against Turkey and registered on 28 June 1994 under file

No. 24490/94;

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

27 February 1995 and the observations in reply submitted by the

applicant on 15 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

1927 and residing at Diyarbakir. He is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex, England. The applicant states that he brings

the application in his own name and on behalf of his son Ramazan Sarli

and his daughter Cemile Sarli.

A. Particular circumstances of the case

The facts of the present case, which are in dispute between the

parties, may be summarised as follows:

The applicant states that the following occurred.

In November 1993, the mayor of Ulusoy village, Ali ilban, was

summoned by Tatvan District Gendarme Unit Commander Dursun (surname

unknown). He was told that the PKK were burning village schools and

that the Government would hold the villagers responsible if the village

school was destroyed. The villagers had previously been threatened in

order to persuade them to become "protectors". There were no

"protectors" in the village. Nor was assistance rendered to the PKK.

The villagers sought to avoid collaboration with either "side".

Following the return of the mayor to the village, the villagers feared

that the village school might be attacked by the "protectors" of Sak

village, 30 kilometres away. They decided that three to four people

would guard the village school after dark. Four people were on watch

in the night of 24 December 1993, i.e. Yakup Çaçan, Naif Eriç, Kazim

Aydin and Rasit Tarçin.

At about 02.00 hours in the morning of 25 December 1993, these

four men saw a military vehicle approach the school. As the vehicle

came within a few metres, they saw by the light of their torches that

the vehicle was a small dark green (military green) van. A team of six

men was aboard it. The four guards called on the vehicle to stop but

it did not do so. The guards then fired one or two shots. Fire was

returned, after which the vehicle withdrew. The villagers came out of

their houses and discovered what had happened. As they were about to

return to their homes, the same persons came back. The guards were

afraid and went home. About half an hour later, a convoy of special

teams and gendarmes arrived at the village. They went to the home of

ismet Orakçi, at the entrance of the village, and asked for the

applicant's house. Taking ismet Orakçi with them, they went to the

applicant's house.

They knocked on the applicant's door at around 03.00 hours. He

asked who they were and was told that they were gendarmes. He opened

the door immediately. The gendarmes asked where his daughter Cemile

was. The applicant said that she was not at home. The applicant's son

Ramazan said that she was knitting with the daughter of Abdullah

Milyas, an acquaintance who lived 500 metres away. Taking Ramazan with

them, but leaving ismet Orakçi, the gendarmes left, having warned the

applicant and the others in his home that they would be shot if they

went outside.

Apparently the gendarmes and Ramazan went to the Milyas home

where Abdullah Milyas opened the door. The gendarmes then took away

Cemile, who was there, Ramazan and Abdullah Milyas. The applicant, his

family and ismet Orakçi went outside when it became light. Other

villagers were outside. There were still gendarmes in and around the

village. The applicant learnt from Abdullah Milyas that the three of

them had been taken to the village school in the night and that

Abdullah had been released one hour later.

On the morning of 25 December 1993, Captain Dursun, the commander

of the gendarmes who had come to the village, collected the villagers

together and asked if there were guerrillas in the village. Not only

did they say there were not, but First Sergeant Yavuz, Commander of the

Gendarme Station of neighbouring Yelkenli village, confirmed it.

Towards noon, whilst there were still gendarmes in the village, the

First Sergeant went to the house of the applicant's son Ramazan and

asked Ramazan's wife where Ramazan and Cemile were. She replied that

the gendarmes had taken them away. First Sergeant Yavuz denied that.

The applicant and his family left the village a few days after

the incident because they feared for their lives. The applicant submits

that the villagers ismet Orakçi and Abdullah Milyas were too afraid of

endangering their lives to provide statements to support the

application.

The applicant claims he has made repeated applications to Tatvan

and Bitlis State Prosecuting Authorities. On 1 February 1994 the Tatvan

public prosecutor replied to an application filed on the applicant's

behalf by his brother on 31 January 1994. The reply states that the

applicant's son and daughter were not taken away by the security forces

but by the "Takosin" group who, it claims, are members of the PKK. It

furthermore mentions that the public prosecutor took a decision of lack

of jurisdiction on 11 January 1994 and that the case was subsequently

transferred to the Head of the Prosecution's office at the Diyarbakir

State Security Court.

The applicant does not know on what basis the public prosecutor

reached the conclusion that his children were taken away by the PKK.

He knows of no investigations into what happened. He maintains that his

children were taken away by gendarmes and that the State has made no

effort to find them.

The respondent Government submit the following account of the

facts, based on statements made on 24 and 25 December 1993 by the

school guards Yakup Çaçan, Naif Eriç, Kazim Aydin and Rasit Tarçin, the

village mayor Ali ilban, the villager ismet Orakçi and the mother of

Cemile and Ramazan.

The four men guarding the school were on watch on the night of

23 December 1993 when, around 23.30 hours, they saw a taxi approach and

a group of terrorists. An exchange of fire followed, lasting about 10

to 15 minutes after which the terrorists left. Woken up by the sounds

of guns, the villagers came out to protect the school. A little later

the terrorists came back and proceeded to fire at the school for

approximately 20 minutes, upon which they left. At around 03.00 hours

gendarme units arrived at the village and during 30 minutes there was

more exchange of fire.

After the second shooting, six terrorists dressed in Kurdish so

called pesh merga outfits came to the house of ismet Orakçi and told

him to take them to the house of Ahmet Sarli. Once there, the

terrorists took Ramazan and Cemile and moved out of the village. The

school guards and the mayor were only informed of this the following

morning.

Following the lodging of a written complaint by the applicant's

brother to the Bitlis public prosecutor on 31 January 1994, the

complaint was transferred to the Tatvan public prosecutor's office the

same day. The Tatvan public prosecutor commenced a preliminary

investigation. On 1 February 1994 the applicant was informed in writing

that his children had been abducted by the PKK and that the file had

been transferred to the Diyarbakir State Security Court on 11 (sic)

January 1994 due to a lack of jurisdiction of the Tatvan public

prosecutor.

B. Relevant domestic law and practice

The Turkish Criminal Code makes abduction or kidnapping a

criminal offence (Section 499). Section 499 para. 2 concerns the crime

of kidnapping for political reasons. Pursuant to Section 4 of the

Prevention of Terrorism Act, the crime described in Section 499 para.

2 of the Criminal Code is considered a terrorist crime.

In general, in respect of criminal offences, complaints may be

lodged, pursuant to Sections 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 criminal offences 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 criminal offence 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 State Council; a refusal to prosecute is subject to an automatic

appeal of this kind.

As regards the prosecution of terrorist crimes, only the State

Security Courts have jurisdiction pursuant to the Prevention of

Terrorism Act.

COMPLAINTS

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

14 and 18 of the Convention.

As to Article 2, the applicant states, in relation to the

disappearance of his children, that unacknowledged detention in the

hands of the State in South-East Turkey is life-threatening, on account

of the administrative practice of torture and the high incidence of

deaths in custody, some apparently as a result of torture. He also

refers to the lack of any effective system for ensuring protection of

the right to life and to the inadequate protection of the right to life

in domestic law.

As to Article 3, he states, with regard to his children, that

their "disappearance" is a form of torture and, in relation to himself,

that his inability to discover what has happened to his children is a

violation of Article 3. He also refers to Article 3 on account of

discrimination on grounds of race and ethnic or national origin.

As to Article 5, he refers to his children 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, he complains of the lack of any independent

national authority before which his complaints can be brought with any

prospect of success.

As to Article 14, he complains of violations of his and his

children's rights under Articles 2, 3 and 5 on account of an

administrative practice of discrimination on grounds of race and ethnic

or national origin.

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

exercise of Convention rights are not designed to secure the ends

permitted under the Convention.

As regards exhaustion of domestic remedies, the applicant

maintains that there is no requirement that he pursue such remedies.

In his view, any alleged remedy is illusory, inadequate and ineffective

because:

(a) the abduction of his son and daughter was officially organised,

planned and executed by agents of the State,

(b) there is an administrative practice of non-respect of the rule

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,

(d) alternatively, the applicant has done everything he can do to

exhaust domestic remedies by submitting petitions to the prosecutors

of Tatvan and Bitlis; the nature of the response received on

1 February 1994 and the lack of any basis for the assertions it

contains confirms the ineffectiveness of any alleged remedy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 June 1994 and registered on

28 June 1994.

On 11 October 1994 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the case.

The Government's written observations were submitted on

27 February 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 15 May 1995, also after an extension

of the time-limit.

THE LAW

The applicant complains of the arrest, detention and

disappearance of his son and his daughter. 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 submit 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.

In this respect the Government refer to the pending investigation

by the public prosecutor of the Diyarbakir State Security Court.

The applicant maintains that there is no requirement that he

pursue domestic remedies. Any notionally available remedy is rendered

illusory and ineffective by an administrative practice of non-respect

for the requirement under the Convention of the provision of effective

domestic remedies.

The applicant refers in particular to the fact that the file was

transferred to the Diyarbakir State Security Court which would indicate

that the authorities assume his children were abducted by terrorists

and that they have excluded the possibility of State involvement. Since

he cannot challenge the transfer of the file, the applicant contends

that he is unable to obtain a judicial determination as to the possible

responsibility of the State.

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. 11.05.89, D.R. 61 p. 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 under

the state of emergency to deal effectively with his complaints.

While the Government refer to the pending investigation by the

public prosecutor of the Diyarbakir State Security Court, the

Commission notes that the alleged incident occurred on either 24 or 25

December 1993 and the investigation has not yet been concluded. The

Commission is not satisfied in view of the delays and the serious

nature of the alleged crime that this inquiry can be considered as

furnishing an effective remedy for the purposes of Article 26

(Art. 26) of the Convention.

The Commission concludes that this application cannot be rejected

for non-exhaustion of domestic remedies under Articles 26 and 27 para.

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

As to the substance of the applicant's complaints

The Government submit that the applicant's account of the facts

is contradicted by the statements of witnesses, including that of his

wife.

The applicant maintains his account of events and contends that,

since the Government have not provided statements from Abdullah Milyas

or from any of the gendarmes present at the material time, the witness

statements submitted by the Government are not conclusive. Moreover,

in the applicant's view, most of these witness statements do not

exclude that his children were abducted in the manner he described.

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 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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SARLI v. TURKEY

SARLI v. TURKEY

LEXI