Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22876/93

by Semse ÖNEN

against Turkey

The European Commission of Human Rights sitting in private on

15 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

G.B. REFFI

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 15 September 1993

by Semse ÖNEN against Turkey and registered on 4 November 1993 under

file No. 22876/93;

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 2 May 1994, 17 August 1994 and on 30 March 1995 and

the information and observations in reply submitted by the

applicant on 5 July and 21 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin. She was

born in 1969 and lives at the Karatas village, Mazidag/Mardin in South-

East Turkey. She is represented before the Commission by Professor

Kevin Boyle and Ms. Françoise Hampson, both university teachers at the

University of Essex. The applicant states that she brings the

application on her own behalf and on behalf of her deceased mother,

Mome, her deceased father, Ibrahim, and her deceased brother, Orhan,

as well as on behalf of ten other surviving brothers and sisters.

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:

On 16 March 1993, the applicant's father, mother, her brother,

Orhan, her sisters, Mekiye and Melek, and her younger infant brother,

Hamdullah, and herself were at home. The other younger members of the

family were at boarding school, one, Ercan, was in Diyarbakir. Another

brother, Ihsan, was undertaking his military service in Merzifon,

Amasya Province.

The family members were sitting together in the inner room in

their two room house at about 21.00. What happened next is explained

by the applicant in her statement:

"There was a knock on the door, and my father went towards the

door saying "Who is there?". Those outside gave the reply: "We

are soldiers, we've come for a search". When my father said:

"If you are soldiers then come with the village mayor, or I will

not open the door", the voice outside said: "The mayor isn't

here, he has gone to Istanbul, don't be afraid of us, we are

going to do a search and go away". When upon this my father

opened the door ajar, they pushed the door suddenly and surged

inside.

One of them quickly opened the bedroom door and started shooting

at my brother Orhan who was sitting in the room. On this a

violent struggle broke out between my father and the others. On

the other side, my mother was fighting with the person who had

shot my brother. When my mother pulled the scarf from the face

of the man she was fighting with, there was a commando's beret

on his head ... When my father pulled the scarf from the face

of the man he was struggling with, he recognised him. The person

he recognised was Ali Ertas, a protector from Balpinar village.

My father shouted out: "Ali Ertas is this how you kill people?".

And before my mother died she was crying "It is Balpinar

protectors who are shooting us, let every one know"."

There is also a tape-recording made by a BBC reporter who had had

interviewed local people about the incident. The recording confirms

in broad outline the account given by the applicant.

The applicant believes that the intruders, probably two in

number, planned to kill only her brother Orhan. Her parents were shot,

she believes, because they had recognised their assailants and had

identified one by name. The applicant herself identified the other

person involved in shooting, when she heard Ali Ertas, who had been

unmasked by her father, call out to his companion "Run Orhan". Orhan

Ertas is the nephew of Ali Ertas. Both were known by the applicant to

be village guards from the neighbouring Balpinar village. She however

did not see the faces of the attackers. Both men were dressed in army

camouflage clothes. Her sister, Mekiye, had hidden under the

bedclothes in fear throughout the incident and saw nothing.

The applicant states that this was not the first attack by

village guards on the village or the Önen family. Earlier attacks had

been made on the village, during which the Önen family had been a

particular target of attack. This is attributed to the refusal of the

village of Karatas to join the village protector system, in which the

Önen family had apparently figured prominently.

The applicant, although injured, followed the killers out of the

house into the garden. She saw about ten other men similarly masked

to those who had broken into the house who appeared to have been

keeping watch. She states that one of those shouted: "Shall we kill

this girl too ?" However some of the villagers who had arrived at the

scene who had licensed weapons fired them in the air and the group made

off. They fled the village in the direction of the local Gendarme

station, known as Etibank Fosfat Gendarme station, which was situated

one and a half kilometres away.

On the applicant's return to the house, the applicant's mother,

Mome Önen, was seen to be still alive. Several neighbours (Tahir Önen,

Gullu Korkmaz and Mahmut Akkus) set out in a minibus to drive her to

the hospital in Diyarbakir. The villagers in the minibus recount the

failure of local police to assist. Their vehicle broke down in front

of the Etibank Gendarme Fosfat station. Tahir Önen got out to seek

assistance and to explain what had happened. He asked for a vehicle

to take the injured woman who was bleeding to hospital. The commander,

whom the neighbours name as NCO Salih, told them that as it was night

time and dangerous he could not give them a vehicle. As a result, Mome

Önen remained in the vehicle bleeding for a further half hour before

the driver managed to repair the minibus.

The group then drove a further 15 kilometres to the Central

Gendarme station in Mazidag district capital where the ambulances were

kept. They explained the emergency and asked for an ambulance but were

refused by the station commander. He gave no reason. The group was

forced to drive on towards Diyarbakir hoping to reach the hospital

there. However when they had travelled a further 39 kilometres and

reached Cinar district, Mome Önen died. The villagers turned back and

returned to Karatas village.

The applicant herself meanwhile had been taken in another vehicle

to Diyarbakir Medical Faculty hospital where she was examined and

treated by a doctor. She was at the hospital for about half an hour

before returning home. As a result of the gunshot wound she lost part

of the two middle toes of her left foot. While she is able to walk,

she complains of deafness induced by the attack and of psychological

after-effects.

The security forces did not come to the scene of the shootings

until the following morning. It is the applicant's belief that the

local gendarme commander knew that the attack was planned, if indeed

it was not instigated by him or by other gendarmes. The basis of this

belief is two previous attacks on the village and the applicant's home

by the security forces. At the very least, she submits, the noise of

the gunfire must have been heard at the gendarme station one and half

kilometres away. In any event, the gendarmerie had been told about the

shootings by the neighbours who drove Mome Önen to hospital.

Commander Salih with eight or nine soldiers arrived at the

village at 5.00h. on 17 March 1993. This officer, according to the

applicant's account, looked at the bodies and asked if the attackers

were known. The applicant named the village protectors who had been

identified as having done the killings. The commander made no comment

but left an hour later having made no effort to investigate the

incident.

Later that morning, the Mazidag State prosecutor, Yekta

Cobanoglu, arrived along with a doctor and assistants. The applicant

and others showed the prosecutor cartridges which they had collected

from the house after the shooting. He declined to receive them,

stating that he had already taken some cartridges from the scene of the

crime which would be sent for ballistic examination. The prosecutor

did not undertake any on-site investigation. Nor did he interview

anyone about the killings. A neighbour did show him a beret that had

fallen from one of the attackers before throwing it into a stove.

The medical doctor accompanying the prosecutor, Dr. Bedat Isci,

conducted a medical examination of the bodies and the post mortem

report confirms that the three deceased died of gunshot wounds. A

burial certificate was then issued to the relatives. The opening

paragraph of the post mortem report states that the security forces

knew of the killings the previous night at 20.00h.. (There is

uncertainty about times since the applicant recalls the shooting

incident as having occurred at 21.00h.) It is not clear if the

gendarmes heard the shooting or if they learned of the incident only

when informed by the relatives who sought a vehicle from the station

in which to bring the applicant's mother to hospital. The report

states that "because of security reasons they [gendarmes] could not go

out by night".

On 20 March 1993, four days after the incident at around 9.00h,

a group of five gendarmes came to the village and accompanied the

applicant, her sister, Mekiye, and her brother, Ercan, along with

several other relatives to Mazidag Gendarme station. There both Mekiye

and she made statements which they both signed. The statements were

taken by the Mazidag State prosecutor and by the station commander.

In the applicant's statement, she repeated her accusation against the

two village guards from Balpinar, whom she named.

However while they were at the station, the two protectors

against whom she had laid the complaint, Ali Ertas and Orhan Ertas,

were brought in. According to the applicant, they kissed the hand of

the station commander, and turning to her and her sister, said in

Kurdish: "Go and give this statement to the muhtar (village mayor),

Muhittin Arac, who taught you this statement. This statement of yours

is not valid here". After greeting the commander again the protectors

then left. They were asked no questions in the presence of the

applicant. Nor were the applicant or her sister asked a single

question about the killings. Their statements were taken without

comment except that the prosecutor stated, in answer to the applicant's

query, that inquiries were continuing.

After several months, concerned that the family had heard nothing

about a prosecution, the local village mayor, Muhittin Arac, sought and

was granted an interview with the Minister for Justice, Mr. Seyfi

Oktay, in Ankara. He cannot however recall the date of the meeting.

The mayor explained the circumstances of the murders to the Minister

and that two named village guards had been identified as the killers.

The Minister stated that this was his first knowledge of the case and

in the mayor's presence called the Mazidag State prosecutor on the

telephone. He heard the Minister ask about the prosecutor's

investigation and inquire what stage it had reached. After the

telephone conversation had ended, the Minister without further

explanation said to him: "We will deal with it."

However neither the mayor nor the family has heard anything

further from the Minister about the case.

On 7 May 1993 at about 15.30h., the applicant's brother Ercan

called at the offices of Mr. Yakta Cobanoglu, the Mazidag state

prosecutor. His purpose was to inquire as to progress in the

investigation of the murders. When he inquired about the case, the

prosecutor told him: "I think your file is lost at the gendarme

station because I have not received it. I don't know of developments."

He also said to Ercan Önen: "Don't put too much pressure on me. I

cannot push this incident too far." Ercan Önen was left with the

impression from this conversation that the prosecutor may have been

threatened.

On 19 May 1993, the newspaper Özgür Gündem published a story

about the failure to prosecute in the case of these murders and

included a statement from unnamed relatives (not the applicant or her

siblings), which named again the two protectors who had been accused

by the applicant in her statement to the prosecutor. The prosecutor,

when approached by the newspaper for comment, stated that he was not

permitted to speak to the press and according to the news story added:

"Don't put me in a difficult position."

The respondent Government state as follows.

On the morning of 17 March 1993, the public prosecutor of Mazidag

arrived at the village and carried out an on-site investigation. On

7 July 1993, the public prosecutor issued a decision of lack of

jurisdiction and sent the file to the State Security Court at

Diyarbakir.

On 6 January 1994, the public prosecutor at the State Security

Court filed an indictment against Ali Ertas and Orhan Ertas relating

to the killing of the applicant's parents and brother.

The Government state however that ballistics examinations (report

from the forensic police laboratory dated 29 April 1994) reveal that

bullets were found from three guns and that none could have been fired

from Ali Orhan's Kalashnikov assault weapon. They also refer to a

statement made to the Ministry of the Interior by the applicant (which

the applicant denies having made) which is dated 1 April 1994 and in

which it is alleged that the applicant explained that the PKK had lent

a taxi to her brother, Orhan, which he had used for his private

benefit. The deduction drawn from this is that the applicant's

brother's actions had rendered his family a target of the PKK. The

Government also refer to alleged discrepancies between the statement

made by the applicant to the gendarme commander on 5 April 1993 and the

statement made in her application to the European Commission of Human

Rights.

B. Relevant domestic law and practice

Criminal procedures

The Turkish Criminal Code makes it a criminal offence 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 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 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 within fifteen days of being

notified (Article 165 of the Code of Criminal Procedure).

If the alleged author of a crime 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.

Civil action for damages

Pursuant to Article 41 of the Civil Code, an injured person may

file a claim for compensation against the alleged perpetrator:

"every person who causes damage to another in an unlawful manner,

be it wilfully or be it negligently or imprudently, is liable for

compensation."

Pursuant to Article 46, any victim of an assault may claim

material damages:

"The person who has been injured is entitled to compensation for

the expenses as well as for the losses resulting from total or

partial disability to work due regard being had to the detriment

inflicted on the economic future of the injured party."

Moral damages may also be claimed under Article 47:

"...the court may, taking into consideration the particular

circumstances, award adequate general damages to the injured...".

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 6, 8, 13

and 14 of the Convention.

As to Article 2, the applicant alleges that the killings on

16 March 1993 were carried out by armed members of the Balpinar village

guards and were instigated by the Gendarmerie who had previously

attacked the Önen family home in the company of village protectors.

In any event, the State's responsibility is engaged, since the village

guard is a part of the security system. The killings of the

applicant's father and brother as well as the attempted killing of the

applicant herself constitute violations of Article 2. So does the

shooting of her mother who died later. The failure of the Gendarmerie

Commander to offer assistance, when informed that a seriously wounded

person was being carried in a vehicle, as well as the similar failure

of the Commander in the Central Gendarme Station to supply an

ambulance, constitute failure by agents of the State to protect life

in violation of Article 2.

As to Article 3, the applicant alleges that the subjection of

herself, her sisters and surviving brothers to the experience of an

armed attack in their home, in which they witnessed their parents and

brother mortally wounded by gunfire constitutes inhuman treatment in

violation of Article 3.

As to Article 6, the applicant alleges that the failure to

properly investigate, and to prosecute those against whom there is

direct evidence of having carried out the killings, represents a

violation of Article 6, since unless there is a successful prosecution,

the surviving family members will be denied any possibility of

compensation and thereby the right of access to a court.

As to Article 8, the applicant alleges that the attack on the

family home constitutes an invasion of the rights to respect for the

family life and home of the applicant and her siblings, which are

protected by Article 8. Moreover, the surviving members of the family,

including infants and children, have been deprived of the right to

respect for family life as a result of the murder of their parents.

As to Article 13, the applicant alleges that there are no

effective remedies before a national authority for the violation of the

right to life and other fundamental Convention rights in South-East

Turkey.

As to Article 14, the applicant alleges that she and her family

were victims of violations of human rights because they were Turkish

citizens of Kurdish origin. Consequently, Article 14 has been violated

in conjunction with Articles 2, 3, 6, 8 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 September 1993 and

registered on 4 November 1993.

On 10 January 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 2 May 1994 after

one extension in the time-limit. The applicant submitted observations

in reply on 5 July 1994. The Government submitted further observations

on 17 August 1994 and the applicant's further observations were

submitted on 21 September 1994.

On 16 December 1994, the Commission examined the state of

proceedings and the Government's request to adjourn the proceedings

pending the outcome of the case before the State Security Court. It

decided to request further information concerning the progress made in

the criminal proceedings. The Government were requested to provide the

information by 20 February 1995.

By letter dated 30 March 1995, the Government provided a number

of reports and statements without specifying the state of proceedings

in the case before the State Security Court.

THE LAW

The applicant alleges that her parents and her brother were

killed in circumstances for which the State is responsible. She 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), 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) and Article 14 (Art. 14) (prohibition

on discrimination) of the Convention.

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.

The Government point out that there are ongoing criminal

proceedings before the State Security Court at Diyarbakir in which the

two alleged assailants are indicted in relation to the killings of the

applicant's parents and brother. In these proceedings, the applicant

could intervene and, on any decision of acquittal, appeal to the High

Court of Appeals.

Further, the Government submit that the applicant has the

possibility of introducing an action in the civil courts against the

alleged wrongdoers for compensation in respect of the killing of her

parents and brother.

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 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. She also refers to the delay in any action being taken by the

authorities and the way that steps only appear to have been taken after

the application was communicated to the Government by the Commission.

She comments strongly on the innuendo cast by the Government alleging

that her brother was involved with the PKK who killed him and finds

this allegation incompatible with the fact that criminal proceedings

are now brought against the two village guards.

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 she had at her disposal adequate remedies to deal

effectively with her complaints.

The Commission recalls that the incident in which the applicant's

parents and brother died occurred on 16 March 1993, more than two years

ago, and that it appears that the assailants accused by the applicant

were indicted in respect of the killings on 6 January 1994. Despite a

request for information by the Commission about the progress of these

criminal proceedings, no further clarification has been received. In

the absence of any apparent progress having been made in the

proceedings and in view of the delays involved and the serious nature

of the crimes alleged, the Commission is not satisfied that these

proceedings can be considered as furnishing an effective remedy for the

purposes of Article 26 (Art. 26) of the Convention. It also finds it

curious that the village guards accused by the applicant are subject

to an indictment whereas the Government allege that the forensic and

other evidence is exculpatory and suggest that the PKK may be

responsible for the attack.

The Commission further considers that in the circumstances of

this case the applicant is not required to pursue any other legal

remedy in addition to the investigation commenced by the public

prosecutor and referred to the State Security Court (see eg. No.

19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75). 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 refer to the discrepancies in the applicant's

statements and the contradictions between what she alleges and the

facts collected by the authorities. They rely on the ballistics reports

which indicate that three different weapons were used and that the

weapon of one of the alleged assailants is shown not to be implicated.

They submit that the preliminary investigation was thoroughly and

seriously carried out.

The applicant maintains her submission that the attack was

carried out by, or with the complicity of, agents of the State.

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)

Menu

ÖNEN v. TURKEY

ÖNEN v. TURKEY

LEXI