KURT v. TURKEY
Doc ref: 24276/94 • ECHR ID: 001-2183
Document date: May 22, 1995
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AS TO THE ADMISSIBILITY OF
Application No. 24276/94
by Koceri KURT
against Turkey
The European Commission of Human Rights sitting in private on
22 May 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
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
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 May 1994 by
Koceri KURT against Turkey and registered on 6 June 1994 under file
No. 24276/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations and information submitted by the respondent
Government on 23 January, 9 February, 7 March and 10 April 1995
and the observations in reply and information submitted by the
applicant on 23 January, 27 March, 2 April and 5 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen of Kurdish origin, born in
1927 and resident at the Agilli village. She is represented before the
Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of
the University of Essex, England.
The facts as submitted by the parties may be summarised as
follows.
A. Particular circumstances of the case
1. Events relating to the alleged disappearance of the applicant's
son
The applicant submits as follows.
The applicant is the mother of Üzeyir Kurt, aged 35, who has
disappeared after being taken into custody by soldiers on
24 November 1993. Eyewitness accounts received by Amnesty International
and confirmed by the applicant indicate that the disappearance occurred
in the following circumstances.
At approximately 18.00h on the evening prior to the
disappearance, soldiers surrounded the village of Agilli near Dicle in
Diyarbakir province. They opened fire on the village with small arms
and rocket launchers and then entered the village the following
morning. All houses in the village were burnt down save for a few which
were kept for use by the soldiers.
When the soldiers had entered the village, Üzeyir Kurt was
staying at the home of his aunt, Mevlude, along with three other
members of his family. That morning the soldiers stood outside the
house and ordered everyone to leave it. All did so except Ãœzeyir Kurt.
He remained inside since his elder brother, Abdulkadir Kurt, had been
killed by torture two years previously while in the custody of the
authorities.
The soldiers then asked Üzeyir's eldest child Aynur, aged 15,
where her father was, and she told them where he was. They then
returned to the house with members of the applicant's family, including
Ãœzeyir's brother Davut. The soldiers told Davut to get his brother from
the house, and one of the soldiers added that "if your brother has a
firearm, I'm going to kill him, if not I'll let him go".
Davut persuaded Üzeyir to leave the house with his hands up. He
was taken to the house of Hasan Kilic, where he was detained that
night. The following morning, 25 November 1993, the applicant went to
see her son, bringing to him clothing and a packet of cigarettes that
one of the soldiers had given her for him. She continues:
"When I got to Hasan Kilic's house, my son Üzeyir was in the
yard. Eight to nine soldiers were keeping guard on him. ... I saw
swellings around my son's eyes, they had tortured him. He was
also shivering from the cold. ... The soldiers drove me away ...
saying 'Go away from here before the Commander comes'. I have not
seen my son Üzeyir since that day."
On 29 November 1993, the applicant wrote to the State Prosecutor
of Bismil that her son had been taken into custody by officers and
applied for information. The request was referred to the Bismil
District Gendarme Unit Command for information about his whereabouts.
On 30 November 1993 they replied that he had not been taken into
custody by themselves and that "it is supposed that the individual in
question may have been kidnapped by the PKK". She then received a
letter from the Bismil Provincial Gendarme Command saying the same.
On 14 December 1993 the applicant wrote to the Office of the
Chief Prosecutor of the State Security Court, asking for information
about her son's whereabouts following his being taken into custody by
gendarmes. The reply from the office of the same day was that they had
no information regarding him in their custody records.
Finally, on 15 December 1993 the applicant wrote to the Bismil
State Prosecutor's Office asking for information about her son's
whereabouts. On the same day that office wrote to the Gendarme Unit
Command, authorising such information to be given, but nothing has been
forthcoming.
The Government state as follows.
Following the receipt of information on 23 November 1993 by the
Bismil Gendarmerie to the effect that PKK terrorists had arrived in the
village of Agilli (Birik) to extort money and supplies, an operation
was carried out in the village. An armed confrontation began during the
search of the village when the security forces came under fire from
terrorists hidden in the village and from persons outside the village.
The conflict continued into the night and several houses and barns were
hit by fire, some of which caught fire. A sergeant had died in the
opening shot of the incident and a terrorist was also killed.
On 24 November 1993, persons suspected of involvement were
gathered by the security forces in the village school for
identification but all were released. A number of arms were found and
confiscated and a further two terrorists were found dead in a barn.
After the completion of the search, a contingent of the security
forces remained behind in the village to protect the villagers. Twelve
persons detained for questioning, including the applicant's son, were
released on 25 November 1993.
On 25 November 1993, the security forces left the village.
Following intensified pressure by the PKK, which blamed the villagers
for the death of their members, the villagers left their village but
continued to work their fields under the protection of the security
forces.
When, a considerable time after the events, the applicant applied
for information about her son to the commander of the gendarmerie,
investigations disclosed that there was no record that her son had
continued to be held in custody. The Government refer to statements
made by members of the applicant's family and other villagers as, inter
alia, refuting the allegation that the applicant's son was taken away
by the security forces.
The Government state that the evidence indicates that the
applicant's son had been taken away from the village by the PKK.
2. Events subsequent to the introduction of the application
On 23 January 1995, the applicant's representatives wrote to the
Commission stating that on 7 December 1994 two relatives of the
applicant, the 16 year old sister of Ãœzeyir and his sister-in-law, had
been taken into custody as had two other persons named in the
applicant's statement to the Commission. Raids were carried out on the
homes of Hasan Kilic (named in the application) and Ãœzeyir's elder
brother. The applicant's representatives stated that following these
events the applicant sent a new statement to the Human Rights
Association, dated 9 December 1994, revoking all petitions and
complaints which she made. They stated that they were very concerned
for the safety of the applicant and her relatives and asked the
Commission to give these serious developments its most urgent
attention. They submitted a statement from Mr. Mahmut Sakar, a lawyer
in the Human Rights Association in Diyarbakir, who stated that he had
spoken to the applicant who said that she had withdrawn her petition
since the gendarmes had threatened that her two other sons would face
the same fate as Ãœzeyir, and that her new house would be burned down.
By letter dated 9 February 1995, the Turkish Government enclosed
a deposition made by the applicant before a notary dated 6 January
1995, which expressed the applicant's wish to revoke all petitions made
in her name to the Commission and complaining that her requests for
information concerning the fate of her son had been distorted and
exploited without her knowledge or consent for the purposes of PKK
propaganda. They submitted a letter by the applicant dated 9 December
1994 to the Ministry of Foreign Affairs to the same effect.
By letter submitted on 10 April 1995, the Government denied that
the persons referred to by the applicant's representatives had been
detained by the gendarmerie in Bismil and stated that 11 persons,
including the applicant, members of her family and villagers, had given
their statements at the gendarmerie on 7 December 1994 and had
afterwards left the building. The Government explained that these
persons had been summoned to give their statements pursuant to the
request made by the Ministry of Justice and gendarme authorities for
the applicant's allegations to the Commission to be investigated.
The applicant's representatives by letter dated 5 May 1995
submitted two statements dated 12 April 1995 by persons who had talked
to the applicant. One statement alleged two further raids had been
carried out on the applicant's house in April and the second reported
that the applicant was being intimidated by State forces but wished her
application to continue.
B. Relevant domestic law and practice
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 Government assert that this provision is not subject to any
restrictions even in a state of emergency or war. The latter
requirement of the provision does not necessarily require proof of the
existence of any fault on the part of the Administration, whose
liability is of an absolute, objective nature, based on a theory of
"social risk". Thus the Administration may indemnify people who have
suffered damage from acts committed by unknown or terrorist authors
when the State may be said to have failed in its duty to maintain
public order and safety, or in its duty to safeguard individual life
and property.
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."
Article 8 of Decree 430 of 16 December 1990, which was
promulgated pursuant to powers granted under the state of emergency,
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."
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.
Criminal procedures
The Turkish Criminal Code makes it a criminal offence:
- to deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to oblige someone through force or threats to commit or not to
commit an act (Article 188),
- to issue threats (Article 191),
- to subject someone to torture or ill-treatment (Article 243 in
respect of torture and Article 245 in respect of ill-treatment
inflicted by civil servants).
As regards unlawful killings, there are provisions dealing with
intentional homicide (Articles 456 et seq.).
In general, in respect of 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
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).
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 13,
14 and 18 of the Convention.
As to Article 2 she refers to the life-threatening nature of the
unacknowledged detention in the hands of the State in South-East
Turkey, such detention amounting to a life-threatening act on account
of the administrative practice of torture and the high incidence of
deaths in custody. She further 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 she refers to her inability to discover what has
happened to her son and to discrimination against both her and her son
on grounds of race or ethnic origin. She also refers to evidence
showing that her son had been beaten while in custody which, like his
disappearance, constitutes inhuman treatment. She also refers to the
suffering to which she has been exposed as a result of her son's
disappearance and her fruitless search for him.
As to Article 5 she complains of her son's unlawful detention,
of her son not being informed of the reasons for his arrest, not being
brought before a judicial authority within a reasonable time and not
being able to bring proceedings to determine the lawfulness of his
detention, these being violations which result in a complete lack of
security of the person.
As to Article 13 she complains of the lack of any independent
national authority before which these complaints can be brought with
any prospect of success.
As to Article 14 in conjunction with Articles 2, 3 and 5 she
complains of an administrative practice of discrimination on grounds
of race or ethnic origin.
As to Article 18 she alleges that the interferences in the
exercise of the Convention rights were not designed to secure the ends
permitted under the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 May 1994 and registered on
6 June 1994.
On 30 August 1994, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the case.
The Government's observations were submitted on 23 January 1995,
after the expiry on 11 December 1994 of an extension in the time-limit.
The applicant submitted her observations in reply on 27 March 1995.
Following the receipt of further information from the applicant
dated 23 January 1995 and the Government dated 9 February 1995, the
Commission on 2 March 1995 considered the state of proceedings in the
application. It decided to request the parties to answer specific
questions concerning developments in the case.
Further information was provided by the Government on 7 March and
10 April 1995, and by the applicant on 2 April and 5 May 1995.
THE LAW
The applicant complains that her son was taken into detention and
that he has now disappeared. She invokes Article 2 (Art. 2) (the right
to life), Article 3 (Art. 3) (prohibition on inhuman and degrading
treatment), Article 5 (Art. 5) (right of liberty and security of
person), Article 13 (Art. 13) (the right to effective national remedies
for Convention breaches), Article 14 (Art. 14) (prohibition on
discrimination) and Article 18 (Art. 18) (prohibition on using
authorised Convention restrictions for ulterior purposes) of the
Convention.
Article 25 (Art. 25): existence of a valid petition
The Government contend that the applicant in her letter of 9
December 1994 and statement of 6 January 1995 to a notary public has
clearly expressed her rejection of the complaints made in her name and
has withdrawn the application. The Commission therefore should
discontinue its examination of the case, the application being a
nullity from the beginning.
The applicant's representatives submit that the applicant and her
family have been subject to intimidation by the authorities. They
submit that, given the cost involved, it is unlikely that the applicant
would go of her own accord to a notary and they rely on the reports
from persons who have spoken to the applicant that she wishes her
application to continue.
The Commission notes that the application submitted to it
contains a power of attorney in favour of the applicant's
representatives and a statement of facts and complaints, both of which
have the applicant's thumbprint as signature. It further notes that the
applicant does not deny that she signed these documents. While the
statement to the notary and the letters relied on by the Government
refer in general terms to misuse of her petition for the purposes of
propaganda there is no clear retraction as regards the central factual
elements of the application, namely, that her son was taken into
custody by security forces and has since disappeared. The Commission
accordingly concludes that the application lodged in her name by her
authorised representatives is a valid exercise of the right of
individual petition under Article 25 (Art. 25) of the Convention and
that the Commission has competence to examine it.
Article 30 (Art. 30): as to the continued examination of the
application
The Commission has also considered whether, notwithstanding the
above finding, the statements which refer to the applicant's wish to
discontinue the application disclose a ground on which the application
should be struck from its list of cases. It recalls that pursuant to
Article 30 para. 1 (a) (Art. 30-1-a) of the Convention it may proceed
to strike a case from its list where circumstances lead to the
conclusion that the applicant does not wish to pursue his or her
petition.
The Commission has had regard to the serious nature of the
complaints made in this application with regard to the disappearance
of the applicant's son. It has also examined with concern the grave
allegations made by the applicant's representatives in regard to
intimidation of the applicant and members of her family. It notes the
Government's denial of these allegations. It considers however that
where there exists a doubt as to the voluntariness of a withdrawal of
an application it would run counter to the efficacy of the system of
protection of human rights set up under the European Convention of
Human Rights for the Commission to discontinue its examination of the
case. In the current state of the application, the Commission finds
that elements exist which raise such a doubt.
Having regard therefore to Article 30 para. 1 (Art. 30-1) in
fine, which provides that the Commission shall continue the examination
of a petition if respect for human rights as defined in the Convention
so require, the Commission does not find it appropriate to strike the
case from the list of its cases at the present time.
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 before lodging an application
with the Commission. They contend that she has failed to lodge a
complaint with a competent public prosecutor or to apply to the
appropriate military authority in respect of any alleged wrongdoers who
are subject to military jurisdiction. Further, the applicant has not
availed herself of the possibility of filing an action for
indemnification before the civil courts.
The applicant maintains that there is no requirement that she
pursue domestic remedies. Any purported remedy is illusory, inadequate
and ineffective since, inter alia, the operation in question in this
case was officially organised, planned and executed by agents
of the State. She refers to an administrative practice of ill-treatment
and torture and of not respecting the requirement under the Convention
of the provision of effective domestic remedies.
Further, the applicant submits that, whether or not there is an
administrative practice, domestic remedies are ineffective in this case
having regard, inter alia, to the situation in South-East Turkey which
is such that potential applicants have a well-founded fear of the
consequences and the lack of genuine investigations by public
prosecutors and other competent authorities. Alternatively, the
applicant has done everything that can reasonably be expected of her
in applying to the military and judicial authorities.
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 notes that in the present case the applicant has
petitioned a number of authorities, judicial and military, complaining
that her son has been taken into custody and applying for information.
It notes in particular that, according to the information which she has
provided, she has applied twice to the Bismil State Prosecutor who
brought the matter to the attention of the District Gendarme Unit
Command and the Bismil Provincial Gendarme Command, and that she also
applied to the Office of the Chief Prosecutor of the State Security
Court.
Further, the Commission considers that it cannot be said at this
stage that the applicant's fear of reprisal if she pursues her
complaints more vigorously is wholly without foundation.
Consequently, the Commission is satisfied that in the
circumstances of this case the applicant can be regarded as having
brought her complaints before relevant and competent authorities and
that accordingly she is not required under Article 26 (Art. 26) of the
Convention to pursue any other legal remedy in this regard (cf. Nos.
16311/90, 16312/90 and 16313/90, N.H., G.H. and R.A. v. Turkey, Dec.
11.10.91, unpublished, and No. 19092/91, Yagiz v. Turkey, Dec.
11.10.93, D.R. 75).
The Commission concludes that the applicant may therefore be said
to have complied with the domestic remedies' rule laid down in Article
26 (Art. 26) of the Convention and, consequently, the application
cannot be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
As regards the merits
The Government deny that the applicant's son was kept in
detention after the 25 November 1993 and state that there is evidence
suggesting that he was taken away from the village by the PKK.
The applicant maintains her account of 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) (C.A. NØRGAARD)