ALTUN v. TURKEY
Doc ref: 24561/94 • ECHR ID: 001-2290
Document date: September 11, 1995
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AS TO THE ADMISSIBILITY OF
Application No. 24561/94
by Abdullah ALTUN
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 30 June 1994 by
Abdullah ALTUN against Turkey and registered on 7 July 1994 under file
No. 24561/94;
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
20 February 1995 and the observations in reply submitted by the
applicant on 15 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1933 and lives at Diyarbakir. He is represented before the Commission
by Professor Kevin Boyle and Ms. Françoise Hampson, both university
teachers at the University of Essex.
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.
Six houses in the applicant's village Akdoruk, including his
house, were burned down by gendarmes. The applicant was not present in
the village when the burning of his house took place. On his way home
he met his wife who warned him not to return. She told him that their
house had been burned down and that three of their oxen and one ton of
tobacco had also been destroyed. His wife had tried to save household
goods from the fire but she had been prevented by the gendarmes who had
hit her with the butt of their rifles and had thrown their possessions
back into the blazing house.
Later the applicant saw the gendarmes around the village and he
believes that they were from Kulp District Gendarme Command which was
stationed about four kilometres from the village.
After two days the applicant and his family moved to rented
accommodation in Diyarbakir. He was subsequently informed that the
gendarmes had returned to the village several days after the six houses
had been destroyed and that on this occasion they had burned down the
rest of the village.
In February 1994, some 20 days after moving to Diyarbakir, the
applicant went to Kulp and lodged a petition with the Kulp Domestic
Judge's Office (Sulh Hakimligi) seeking determination of damages for
his claim to compensation. In the statement he made before the judge
the applicant said that his village had been burned down and that he
had suffered damage. He did not say that the Gendarmerie had been
responsible. Nor did the judge ask who had burned down the village. The
judge then dismissed the applicant and the others who had also lodged
petitions.
The applicant later learned that their petitions had been
transmitted to the Kulp Gendarmerie whose officers the applicant
considers as having carried out the destruction of his house and
property. He has also learnt that since then members of the Gendarmerie
have been constantly asking for him. He is however too frightened to
go to the Gendarmerie headquarters because two other villagers who had
petitioned at the same time as he, had been called to the Kulp
Gendarmerie and had been beaten very severely. The Gendarmerie asked
them nothing about the application for compensation. According to the
applicant, the Gendarmerie refused to record or process his fellow
villagers' petitions which had been forwarded to them.
In his initial application, the applicant submits that the
burning of the six houses occurred on 3 January 1994, which corresponds
to the Kurdistan Human Rights Project's records of villages burnt that
month. However, documents submitted by the Government appear to suggest
that the event under investigation took place on 13 November 1993. It
is submitted on behalf of the applicant that he is over 60 years of age
and that Kurdish peasants do not have an exact sense of time. At
present further clarification of the date is being sought.
The respondent Government state the following.
The public prosecutor of the Kulp district commenced a
preliminary investigation into the incident under file no. 1993/159.
On 22 August 1994, he issued a decision of no jurisdiction and the file
was transferred to the Kulp District Administrative Board under the
special procedure for the prosecution of public officers, where it is
still pending investigation.
A letter of 23 January 1995 from the Kulp Justice Penal Court,
annexed to the Government's observations, states that there is no
record of the applicant having made an application for redress in
relation to the burning of his house.
COMPLAINTS
The applicant complains of violations of Articles 3, 5, 6, 8, 13,
14 and 18 of the Convention and Article 1 of Protocol No. 1.
As to Article 3 the applicant states that the destruction of his
village, including his home and possessions, and the assaults on his
wife represent a form of collective punishment and manifest and
deliberate infliction of inhuman and degrading treatment. Moreover, the
destruction was discriminatory on grounds of ethnic origin or status
as it was directed against a member of a national minority.
As to Article 5 the applicant refers to a breach of his right to
the exercise of liberty and the enjoyment of security of person. He has
been deprived of his freedom of movement and liberty and security of
person by arbitrary expulsion from his village through a procedure not
sanctioned by Article 5 para. 1, and the expulsion was effected by
means of a procedure not prescribed by law.
As to Article 6 the applicant complains of having been denied any
effective procedure to challenge or resist the deprivation of his
freedom to reside in his own home and to pursue his livelihood as a
farmer, or to receive compensation for his deprivation of possessions.
As to Article 8 the applicant refers to a violation of his right
to private life, his home and his family life. He complains of his
arbitrary expulsion from the village and of the destruction of his
home. He points out that the expulsion did not pursue a legitimate aim
under para. 2 of Article 8.
As to Article 13 he alleges that there is no independent national
authority before which his complaints could be brought with any
prospect of success.
As to Article 14 the applicant alleges that he has been
discriminated against on the ground of his Kurdish origin in the
enjoyment of his rights under Articles 3, 5, 6, 8 and 13 of the
Convention and Article 1 of Protocol No. 1.
As to Article 18 he refers to the destruction of his home and
livestock, his forced abandonment of his village, home and livelihood
for purposes incompatible with the Convention. He submits that he was
arbitrarily forced to leave his property as a punishment because he is
a Kurdish civilian and because the Government is engaged in a violent
conflict with armed Kurdish groups. The Government's intention is to
intimidate the applicant and fellow villagers from providing support
or sympathy to the armed opposition forces.
As to Article 1 of Protocol No. 1, the applicant refers to the
destruction of his house, animals and tobacco crop.
The applicant maintains that there is no requirement that he
pursue alleged domestic remedies.
According to him, any alleged remedy is illusory, inadequate and
ineffective because:
a) the actions of which he complains were officially executed by
agents of the State, namely gendarmes;
b) there is an administrative practice of non-respect for 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;
d) whether or not there is an administrative practice, the situation
in South-East Turkey is such that potential applicants have a well-
founded fear of the consequences, should they invoke alleged remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 June 1994 and registered on
7 July 1994.
On 11 October 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 4 January 1995.
By letter of 27 January 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 20
February 1995.
On 2 March 1995 the Commission decided to adjourn examination of
the admissibility and to invite the applicant's representatives to
respond to the Government's observations before 24 April 1995.
Following an extension of this time-limit the applicant submitted
observations in reply on 15 May 1995.
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 5 (Art. 5) (the right to
liberty and security of person), Article 6 (Art. 6) (the right of
access to court), Article 8 (Art. 8) (the right to respect for family
life and 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 peaceful enjoyment of possessions).
Exhaustion of domestic remedies
The Government argue that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention. They contend that the applicant
has neither applied for indemnity nor complained to the competent
judicial authorities and they point out that there is a pending
investigation before the Kulp District Administrative Board.
The applicant maintains that there is no requirement that he
pursue domestic remedies. He contends that there is no role for him in
the present stages of the investigation pending before the District
Administrative Board. In any event, since the applicant has claimed
that there is an administrative practice of violation of Article 13
(Art. 13) of the Convention and has provided supporting evidence for
such a practice, he is not, in his view, required to await the outcome
of the criminal investigation process before complaining to the
Commission.
With regard to the Government's assertion that he did not take
any legal action in order to seek compensation for the destruction of
his possessions, the applicant repeats the detailed account given in
his original application to the effect that he did do so.
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 the 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.
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 seem to have occurred in November 1993 and the investigation has
not yet been concluded. The Commission is not satisfied in view of the
delays involved 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.
Six months time-limit
The Commission has examined whether the applicant has complied
with the requirement imposed by Article 26 (Art. 26) of the Convention
that an application must be introduced within six months of the final
decision taken in respect of the complaints.
In the present case, the Commission observes that whereas in his
original application the applicant stated that his house was burnt down
on 3 January 1994, it appears that the incident under investigation by
the public prosecutor of Kulp district and the Kulp District
Administrative Board occurred on 13 November 1993. The Commission
found above that the applicant is not required to pursue domestic
remedies in light of their apparent ineffectiveness. In these
circumstances, the question arises whether the complaints insofar as
they relate to specific acts carried out on 13 November 1993 have been
introduced out of time, given that the application was introduced on
30 June 1993.
The case-law of the Commission establishes that where no domestic
remedy is available, the six months period runs from the act complained
of (see eg. No. 10530/83, Dec. 16.5.85, D.R. 42 p. 171). However,
special considerations could apply in exceptional cases where an
applicant first avails himself of a domestic remedy and only at a later
stage becomes aware, or should have become aware, of the circumstances
which make that remedy ineffective. In such a situation, the six months
period might be calculated from the time when the applicant becomes
aware, or should have become aware, of these circumstances (cf. No.
23654/94, Dec. 15.5.95, Laçin v. Turkey, D.R. 81-B).
In this respect the Commission notes that the applicant states
that he took steps to bring his complaints to the attention of the
authorities. He claims to have lodged a petition with the Kulp Domestic
Judge's Office in February 1994 in order to obtain compensation. The
applicant submits that this petition has been transmitted to the Kulp
Gendarmerie, whose officers the applicant holds responsible for the
destruction of his house and property. Furthermore, according to the
applicant, the Kulp Gendarmerie has refused to record or process the
petitions of two fellow villagers lodged at the same time as his own
petition with the Kulp Domestic Judge's Office and equally transmitted
to the Kulp Gendarmerie. The applicant further states that he is too
frightened to go to the Kulp Gendarmerie headquarters because of the
ill-treatment allegedly meted out to the two other villagers who had
been called there.
The Commission observes furthermore that an investigation into
the incident was initiated in 1993 by the public prosecutor of Kulp
district, which, following the transfer of the file to the Kulp
District Administrative Board in August 1994, has so far not yielded
any results.
Given that these circumstances do not disclose any indication
of a delay on the part of the applicant in introducing his application
once it must have become apparent that no redress for his complaints
was forthcoming, the Commission considers that the relevant date for
the purposes of the six months time limit should not be considered to
be a date earlier than February 1994.
It follows that the applicant's complaints have been introduced
within the six months time-limit imposed by Article 26 (Art. 26) of the
Convention.
As to the substance of the applicant's complaints
The Government submit that they are unable to submit any
observations on the merits of the case at the present time.
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)