Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23181/94

by Halit SAHIN

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 20 December 1993

by Halit SAHIN against Turkey and registered on 7 January 1994 under

file No. 23181/94;

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

5 December 1994 and the observations in reply submitted by the

applicant on 27 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, born in 1962,

lives in the village of Cagdas in the Lice district, the province of

Diyarbakir.

The applicant is represented before the Commission by Professor

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

University of Essex.

The application was introduced on behalf of Ali Sahin. The

applicant's representatives informed the Commission on 14 July 1994

that the name Ali arose from a mistake made by the person in Turkey who

recorded the original statement of the applicant, and that the

applicant's first name is in fact Halit.

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 25 June 1993 the applicant, who is a lorry driver, went to the

village of Pecar to load poplar wood. At around 10 a.m., soldiers and

commandos connected to the Lice Gendarme Station organised a raid on

the village. The applicant was accompanied by his partner, B.A., and

two villagers, A.P. and S.T.. There were also about 40 women in the

village. As soon as the soldiers entered the village, they started to

fire indiscriminately and set light to and demolish the houses. The

applicant and his companions wanted to flee but could not as there was

nowhere they could flee to. When the soldiers saw them, they started

to beat them, hitting them with their rifle butts.

The soldiers then set light to the applicant's lorry and burnt

it despite his pleas. A week later the applicant went back to the

village to fetch his vehicle which was completely burnt out. He has

suffered about 120,000,000 Turkish Liras in material damages.

The applicant's account is corroborated by witnesses, his partner

and one of the villagers accompanying him on 25 June 1993. They state

that the person who assaulted the applicant and themselves the most was

the commander of the soldiers, who is named in the applicant's

statement as Captain Nevzat Arik.

In other submissions, the applicant's representatives have

indicated 24 June 1993 as being the date of these events.

The respondent Government state that no armed clash took place

between the security forces and the PKK on 24 June 1993.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

he was assaulted by soldiers with their rifle butts without any

justification, such as self defence, or any suggestion that they were

purporting to arrest him. He claims to be the innocent victim of

inexcusable brutality by the Turkish security forces and considers that

such behaviour as described in his statement constitutes inhuman and

degrading treatment contrary to Article 3 of the Convention.

The applicant submits that he was assaulted by the soldiers for

no reason or motive other than that he was a Kurd. He alleges that the

assaults are also a violation of Article 14 of the Convention on

grounds of race or ethnic origin.

The applicant further complains that the deliberate burning of

his lorry constitutes a violation of his right to the peaceful

enjoyment of his possessions, as guaranteed by Article 1 of Protocol

No. 1 of the Convention.

He also complains that he has been a victim of discrimination in

the enjoyment of his rights under Article 1 of Protocol No. 1 on

grounds of his Kurdish origin. He submits that he is a victim of such

discrimination on grounds of race or ethnic origin.

As to the exhaustion of domestic remedies under Article 26 of the

Convention, the applicant considers that he is released from any

obligation to pursue a domestic remedy for the assaults and beatings

he suffered, because no remedy in the circumstances could possibly

prove adequate or effective. The applicant's partner has however

started proceedings with an application to the Lice court on 1 July

1993 for a determination of the value of their lorry. This attempt to

achieve compensation is still pending.

In this respect the applicant also refers to arguments presented

to the Commission in two other applications (No. 21893/93, Akdivar v.

Turkey, and No. 21895/93, Cagirga v. Turkey, both declared admissible

on 19 October 1994).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and

registered on 7 January 1994.

On 5 April 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 8 July 1994. At the

Government's request, this time-limit was subsequently extended until

8 August 1994.

By letter of 24 October 1994, the Commission's Secretary informed

the Government that their request for a further extension had been

refused by the President of the Commission on the ground that six

months had elapsed since the application had been communicated. It was

added that the application would be considered by the Commission at its

session commencing on 9 January 1995.

Observations were submitted by the Turkish Government on

5 December 1994. Observations in reply were submitted on behalf of the

applicant on 27 February 1995.

THE LAW

The applicant complains of violations of Article 3 (Art. 3) of

the Convention (the prohibition on inhuman and degrading treatment) and

Article 14 (Art. 14) (the prohibition on discrimination), as well as

Article 1 of Protocol No. 1 (P1-1) (the right to property) in

connection with an alleged assault on him by soldiers during a raid on

a village, in the course of which his lorry was destroyed.

1. The Government submit in the first place 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 there has

been no formal complaint or any notice made to the competent public

prosecutor.

In respect of damage alleged to have been caused by the State,

the Government submit that the applicant had the possibility of

introducing an action for compensation before the administrative

courts. They refer to the material submitted to the Commission in the

applications of Akdivar and others v. Turkey (No. 21893/93, Dec.

19.10.94) and Cagirga v. Turkey (No. 21895/93, Dec. 19.10.94) which

indicated, in their view, that the administrative courts issue

judgments on the basis of "absolute" or objective liability of the

administration or on the basis of faults or negligence of

administrative agents. They refer in particular to a judgment of the

Administrative Court of Van (file no. 1992/407, decision no. 1994/171)

which concerns the granting of compensation to a person whose truck had

been damaged in an air-raid.

The Government contend that the application to the Lice court by

the applicant's partner for a determination of the value of their lorry

does not constitute an action for damages, but is only a first step

which has to be followed by an action for damages relying on the

determined and preserved evidence. In this respect, however, the

Government consider that since the petition submitted by the applicant

bears no sign or stamp, it cannot be considered authentic.

The applicant maintains that there are no domestic remedies

operating in South-East Turkey which could prove adequate or effective,

and that he is therefore released from any obligation to pursue them.

The applicant submits that, even if he were to receive

compensation for the loss of his lorry, there is still no remedy for

the beatings which he sustained or for the discrimination which he

alleges. In this respect the applicant points to the present denials

by the Government of the alleged events as further evidence of the

official attitude to complaints made about the destruction of property

by Government troops.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach. It is furthermore established that the burden of

proving the existence of available and sufficient domestic remedies

lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong,

Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77,

p. 18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v.

Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).

The Commission does not deem it necessary to determine whether

there exists an administrative practice on the part of Turkish

authorities tolerating abuses of human rights of the kind alleged by

the applicant, because it agrees with the applicant that it has not

been established that he had at his disposal adequate remedies 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 also

concerned complaints under Article 3 (Art. 3) of the Convention and

Article 1 of Protocol No. 1. 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 security forces, the

Commission found it significant that, although the destruction of

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

Turkey, the Government had not provided a single example of

compensation being awarded to villagers for damage comparable to 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, which it finds apply equally to the applicant's

complaints of the destruction of his lorry and assault by soldiers

during an alleged operation by security forces to destroy and evacuate

a village. The Commission considers that the judgment of the

Administrative Court of Van, also submitted by the Government in the

application of Akdivar and others v. Turkey mentioned above, cannot be

regarded as an example of an effective remedy since the circumstances

of the case cited by the Government do not appear comparable to that

of the present case, the former being concerned with an incident

related to aircraft outside the context of an alleged forcible village

evacuation.

This application cannot, therefore, be rejected for non-

exhaustion of domestic remedies under Articles 26 and 27 para. 3

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

2. As regards the merits of the application, the Government state

that no armed clash took place between the security forces and the PKK

in the village of Pecar on 24 June 1993. They cast doubt on the

credibility of the applicant's allegations in that the applicant has

not presented any evidence to show that the allegedly burnt lorry

belonged to him, that no knowledge about its destruction has reached

them and that no medical evidence has been adduced in respect of the

alleged beating of the applicant by the security forces.

The Government further consider that the change of the

applicant's name from Ali to Halit renders the application

inadmissible.

The applicant maintains his account of the attack by security

forces on the village, and refers to statements made by the applicants

in other applications concerning the same incident (eg. No. 23182/93,

Dündar v. Turkey, Dec. 28.11.94). He submits that the Government's

claim that no clash took place on 24 June 1993 between the security

forces and the PKK in Pecar is irrelevant, since he has not claimed

that the destruction of his lorry and the assault on him took place as

a result of such a clash.

The applicant denies that his name has been changed, and recalls

that the use of the name Ali at the time of the introduction of his

application arose from a mistake made by the person in Turkey who

recorded his original statement.

The Commission accepts that the application was in reality

introduced on behalf of Halit Sahin and 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)

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SAHIN v. TURKEY

SAHIN v. TURKEY

LEXI