Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23530/94

by Ramazan BEYAZ

against Turkey

The European Commission of Human Rights sitting in private on

11 September 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

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 9 February 1994

by Ramazan BEYAZ against Turkey and registered on 24 February 1994

under file No. 23530/94;

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

1 March 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

1964 and resident at Lice, Diyarbakir province. He is represented

before the Commission by Professor Kevin Boyle and Ms. Françoise

Hampson, both of the University of Essex, England.

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.

On 10 August 1993 an incursion by an armed group of the PKK

occurred in the village of Cumar, which is a neighbouring village of

the applicant's village Sisi. A clash ensued which was apparently ended

by soldiers threatening to kill nine villagers unless the PKK stopped

shooting. The PKK then stopped the firing.

As an act of vengeance for the PKK raid, the security forces then

attacked the applicant's village on the same day at about 17.00 to

17.30 hours. At least thirty military vehicles (armoured cars, jeeps,

tanks, armed personnel carriers) arrived at the village. The villagers,

including the applicant and his family, had already fled the village.

They watched from a distance while the village was razed to the ground.

This operation of destruction apparently occupied two days.

When the applicant returned to the village after these two days,

almost all of the 60 household village had been burnt and destroyed.

No habitable houses were left in the village.

Some of the villagers rented houses at Lice, went to the village

in the morning and returned in the evening. Some of them either put up

tents in their fields or sheltered in huts they made from tree

branches. The applicant and his family have moved into a prefabricated

house at Lice. They go to the village in the mornings, look after their

fields and orchards and return to Lice in the evenings.

The cash crop of the village is tobacco and the villagers fear

that the soldiers will return to destroy it after it is harvested for

drying, because a military commander made such an explicit threat to

some of the villagers at the time of the destruction of the village.

The applicant's family consists of nine people (wife, children,

brothers and their children), and their house had two storeys. They

used the lower floor as a stable and lived in the upper storey

themselves. Their four goats and two unweaned calves died, burnt inside

the stable, and no usable goods remained in the house.

The applicant has not received any explanation for the alleged

destruction of his home, his possessions, his village and his family

life. Nor has he been interviewed by the prosecutor or any other

authority in connection with this destruction or received any

assistance whatsoever arising from this military attack.

In response to the Government's allegations to the contrary, the

applicant submits that following the alleged events he has frequently

petitioned the authorities, including the appointed mayor, over his

loss. He has submitted oral and written petitions seeking compensation.

He has had a lawyer draw up a written petition for submission to the

authorities but they refused to accept his petition. The applicant has

not, so far, supplied the Commission with any documentary evidence of

these attempts to obtain compensation or redress.

The respondent Government state the following.

A report submitted by the Government and drawn up on 25 November

1994 by two provincial gendarme colonels, and in its turn based on a

report by the Lice District Gendarme commander, states that the

gendarme logbook does not contain any mention of security force

activity on 10 August 1993 in the villages named by the applicant.

The applicant's village of Sisi has indeed been abandoned by its

inhabitants but as a result of the economic hardship suffered through

the activities of the PKK in the area rather than as a consequence of

any action on the part of the security forces. Following the departure

of the villagers the houses deteriorated and, given that their roofs

were made of mud, collapsed. Some people returned and removed the

timber of roofs to sell as firewood in Diyarbakir.

Following the communication of the present application to the

Turkish Government in May 1994 the public prosecutor of Lice district

commenced a preliminary investigation into the incident under file no.

1994/128 . On 21 February 1995 he issued a decision of no jurisdiction

and the file was transferred to the District Administrative Board under

the special procedure for the prosecution of public officers, where an

investigation is still pending.

B. Relevant domestic law and practice

The Government have submitted that the following domestic law is

relevant to the case:

Civil and administrative procedures

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."

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."

Proceedings before the administrative courts are in writing.

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 and the administrative

courts. Damage caused by terrorist violence may be compensated out of

the Social Help and Solidarity Fund.

Criminal procedures

The Turkish Criminal Code makes it a criminal offence:

- to make an unlawful search of someone's home (Articles 193 and

194),

- to commit arson (Articles 369, 370, 371, 372) or aggravated arson

if human life is endangered (Article 382),

- to commit arson unintentionally by carelessness, negligence or

inexperience (Article 383), or

- to damage another's property intentionally (Article 526 et seq.).

For all these offences, complaints may be lodged, pursuant to

Articles 151, 152 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).

If the alleged author of a crime is a State official or civil

servant, permission to prosecute must be obtained from local

administrative boards. The local board decisions may be appealed to the

State Council; a refusal to prosecute is subject to an automatic appeal

of this kind.

Emergency measures

Articles 13 to 15 of the Constitution provide for substantial

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 the areas 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 boards.

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 them without justification."

COMPLAINTS

The applicant complains of violations of Articles 3, 6, 8, 13,

14 and 18 of the Convention and Article 1 of Protocol No. 1.

As to Article 3, he submits that his and his family's subjection

to the experience of being forced to flee from armed military incursion

and to abandon their home, and to witness its destruction, constitutes

inhuman treatment.

As to Article 6, he submits that the attack on his home and

possessions interferes with his civil rights, that his right to

compensation is effectively determined by the outcome of criminal

proceedings, and that, since there will be no prosecution of those

responsible, he is being denied access to court to vindicate his

rights.

As to Article 8, he complains that the deliberate destruction of

his home, where he lived with his family, constitutes an invasion of

his rights to home and to family life without any possible

justification under paragraph 2 of Article 8.

As to Article 13, he submits that the destruction of his village

is an example of a deliberate administrative practice for which no

redress can be obtained. He recalls that over 800 villages in the

region have been destroyed in 1993 alone. As to Article 14, he

submits that the violation of Articles 3, 6 and 8 of the Convention and

Article 1 of Protocol No. 1 occurred because the village was Kurdish

and he complains about violations of Article 14 in conjunction with

these Articles. He recalls that all villages destroyed in South-East

Turkey by military action, including his own, are Kurdish villages.

As to Article 18, he submits that the violations of which he

complains represent restrictions of his rights imposed for purposes

incompatible with the Convention.

As to Article 1 of Protocol No. 1, he states that the damage to

his home and goods and to his capacity to conduct his farming

activities constitute a gross violation of his property rights for

which no possibility of compensation exists.

As to the exhaustion of domestic remedies, the applicant submits

that there are no effective remedies available.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 February 1994 and registered

on 24 February 1994.

On 9 May 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 19 August 1994.

At the request of the Government, the time-limit for the

submission of their observations was extended to 30 September 1994.

By letter dated 11 October 1994 the Government requested that the

examination of the application be adjourned pending the investigation

by the public prosecutor in Lice which had commenced following the

communication of the application.

On 3 December 1994 the Commission refused the adjournment and

invited the Government to submit their observations by 23 January 1995.

By letter of 13 February 1995 the Commission's Secretary pointed

out to the Government that the period for the submission of the

Government's observations had expired and that no extension of that

time-limit had been requested. It was added that the application was

being considered for inclusion in the list of cases for examination by

the Commission at its February session.

Observations were submitted by the Turkish Government on 1 March

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

the time-limit.

THE LAW

The applicant alleges that a raid was carried out by the security

forces on his village, in the course of which his house and possessions

were destroyed. He invokes Article 3 (Art. 3) (the prohibition on

inhuman and degrading treatment), Article 6 (Art. 6) (the right of

access to court), Article 8 (Art. 8) (the right to respect for family

life and the home), 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, as well as Article 1 of Protocol No. 1

(P1-1) (the right to property).

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. They contend that the applicant has failed to complain to

the competent judicial authorities and point out that the investigation

by the District Administrative Board is still pending.

The applicant maintains that there is no requirement that he

pursue domestic remedies. Neither the remedies suggested by the

Government nor the pending investigation by the District Administrative

Board could be regarded as effective remedies, in the applicant's view,

since the Government have already rejected security force involvement

in the alleged events, relying on reports drawn up by the gendarmes,

while the data contained in these reports do not support such a

conclusion.

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).

In this respect the Commission refers to its findings in

Application No. 21893/93, Akdivar and others v. Turkey (Dec. 19.10.94),

which concerned similar allegations by the applicants of destruction

of their village and forcible expulsion. In that case, the Commission

noted that it was a known fact that there has been destruction of

villages in South-East Turkey with many people displaced as a result.

While the Government had outlined a general scheme of remedies that

would normally be available for complaints against the security forces,

the Commission found it significant that, although the destruction of

houses and property had been a frequent occurrence in South-East

Turkey, the Government had not provided a single example of

compensation being awarded to villagers for damage like that suffered

by the applicants. Nor had relevant examples been given of successful

prosecutions against members of the security forces for the destruction

of villages and the expulsion of villagers. The Commission

considered that it seemed unlikely that such prosecutions could follow

from acts committed pursuant to the orders of the Regional Governor

under the state of emergency to effect the permanent or temporary

evacuation of villages, to impose residence prohibitions or to enforce

the transfer of people to other areas. It further had regard to the

vulnerability of dispossessed applicants, under pressure from both the

security forces and the terrorist activities of the PKK, and held that

it could not be said at this stage that their fear of reprisal if they

complained about acts of the security forces was wholly without

foundation.

The Commission concluded that in the absence of clear examples

that the remedies put forward by the Government would be effective in

the circumstances of the case, the applicants were absolved from the

obligation to pursue them.

In the present case, the Government have not provided any

additional information which might lead the Commission to depart from

the above conclusions.

While the Government refer to the pending investigation by the

District Administrative Board, the Commission notes that the alleged

events occurred on 10 August 1993 and the investigation has not yet

been concluded two years later. The Commission is not satisfied in view

of the delays and the serious nature of the alleged crimes that this

inquiry can be considered as furnishing an effective remedy for the

purposes of Article 26 (Art. 26) of the Convention, in particular

having regard to the fact that the Government have already dismissed

any possibility of security force involvement.

The Commission finds therefore that in the circumstances of this

case the applicant is not required to pursue any further legal remedy

concerning his complaints (see eg. No. 19092/91, Yagiz v. Turkey, Dec.

11.10.93, D.R. 75).

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 regards the merits

The Government reject the applicant's allegations that there is

an administrative practice to violate human rights in conjunction with

discrimination against Turkish citizens of Kurdish origin. The equality

of all Turkish citizens whatever their ethnic origin is reflected

throughout Turkish society.

The Government further contend that the abandonment of the

applicant's village of Sisi is not the result of any act by the

security forces. They allege that it appears from gendarme records that

no security force operation took place in Cumar or Sisi on 10 August

1993. The applicant maintains his account of events. He furthermore

submits that the gendarme records relied on by the Government are not

conclusive.

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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TiMURTAS v. TURKEY

TiMURTAS v. TURKEY

LEXI