Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23654/94

by Mehmet LAÇiN

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 1 March 1995 by

Mehmet LAÇiN against Turkey and registered on 10 March 1994 under file

No. 23654/94;

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 25 January 1995 and the observations in reply

submitted by the applicant on 13 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, born in 1960,

resides at the Yolalti village in Diyarbakir province. 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.

The applicant first refers to two previous applications (No.

22280/93, Demir v. Turkey, and No. 22281/93 Yasar v. Turkey, both

communicated to the Turkish Government on 11 October 1993, the latter

was declared admissible on 3 April 1995), and to an application lodged

at the same time as the present one (No. 23655/94, Çelik v. Turkey).

All these applications concern complaints arising from substantially

the same incidents as in the present case. The applicant further states

that he brings the application in his own name and in that of his

brother Ibrahim Laçin.

The applicant and his brother were both resident at the village

of Tepecik, in the Kocaköy district of Diyarbakir province. On or about

19 December 1992, following the death of a "village protector" during

a clash between fighters of the PKK (Kurdish Workers' Party - an armed

separatist movement) and "village protectors", a force composed of

regular soldiers and "village protectors" from the Kirmatas and

Mesebaglari villages entered Tepecik and started firing weapons

indiscriminately, seeking to avenge the dead "protector". The firing

continued for a period of between one and two hours. During that time

several persons were killed or wounded and property was destroyed.

In the early hours of the morning of 22 December 1992 the

"protectors" and the soldiers who were with them said, "Evacuate the

village: we are going to burn the village." All the villagers,

including the applicant, left Tepecik and, carrying their children on

their backs, walked to neighbouring villages.

Four persons who had remained in the village were injured. Forty

of the seventy houses in the village were set alight and demolished.

The house of the applicant's brother, Ibrahim Laçin, was burnt down.

In addition, the applicant's own property, namely 20 sheep, 1.5 tons

of tobacco, 2 tons of lentils, 2 tons of wheat, and everything in the

homes of the applicant and the other villagers were destroyed. Because

the applicant and his fellow villagers have been unable to return to

the village, some 3,500 poplar trees, 100 walnut trees, 40 plum trees

and the vineyard (5 dunums in extent) will have dried up.

By letter dated 20 May 1993 the applicant applied to the Chief

Public Prosecutor of Diyarbakir, requesting that a solution be found

by the State for the matters referred to above, that proceedings be

commenced against those responsible, and that the applicant and the

other villagers receive proper compensation. No reply to this

application has been received.

In this respect the applicant also submits a statement of 20 May

1993 of the Area Representative of the Diyarbakir branch of the Human

Rights Association. It says that the villagers had filed a complaint

and a written petition to the Diyarbakir State Prosecution, but that

the petition had not been processed and no inquiry had been opened. It

further states that almost all applications made to judicial and

administrative offices by those suffering damage by State forces in the

State of Emergency Area are rendered "ineffectual". It concludes that

in this situation it is meaningless to pursue domestic legal remedies.

The respondent Government state the following.

On 17 December 1992 a rural minibus shuttling between Tepecik and

Arkabasi was waylaid by PKK terrorists who required the passengers to

identify themselves and then shot one who was a "village protector".

On 19 and 20 December 1992 a clash took place between security

forces and the PKK in Tepecik, following the shooting of another

"village protector" who was driving through Tepecik accompanied by

other "protectors". In the course of the clash 10 to 12 houses were

burned. The intervention of the security forces permitted the

withdrawal of the "village protectors" and at the same time the PKK

began fleeing the village and setting it alight, upon which the

inhabitants left.

In respect of the above events the Government refer to statements

of villagers and procès-verbaux made in the course of an investigation,

from which it appears, inter alia, that Ibrahim Laçin was taken into

custody and considered a suspect in the incident during which the

second "village protector" was killed.

The Government submit that the applicant's house was, however,

not damaged following the events on 19 and 20 December 1992, but that

he set fire to it himself in order to claim compensation for damages

from the Government at a later date.

Following the communication of the present application to the

Government, an investigation by the Public Prosecutor of Diyarbakir

under file No. 1994/1556 has been opened. Due to the applicant's

departure from his village, it has not so far been possible to obtain

further information or evidence in respect of his complaints.

COMPLAINTS

The applicant complains, in his own name and on behalf of his

brother, 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, he complains of the collective punishment of the

applicant together with the other villagers of Tepecik and also of

discrimination on grounds of race.

As to Article 5, he complains of various breaches of his right

to liberty and security of person by virtue of his arbitrary expulsion

from his village through a procedure not sanctioned by Article 5 para.

1 and by means not prescribed by law.

As to Article 6, he complains of the failure to initiate

proceedings before an independent and impartial tribunal against those

responsible for the killings, injuries and destruction of property, as

a result of which he cannot bring civil proceedings arising out of

those events and he is denied effective access to a court.

As to Article 8, he complains of a violation of his right to

respect for his family life and home by reason of his arbitrary

expulsion from his village and by reason of the destruction of his

home. Alternatively, he submits that the expulsion did not pursue a

legitimate aim for the purpose of Article 8 para. 2.

As to Article 13, he complains of the lack of any independent

national authority before which his complaints can be brought with any

prospect of success.

As to Article 14, he complains of an administrative practice of

discrimination on grounds of race and he refers in particular to

discrimination in the enjoyment of his rights under Articles 5, 6, 8

and 13 of the Convention and Article 1 of Protocol No. 1, as he was

denied these rights on account of his Kurdish origin.

As to Article 18, he submits that the destruction of his own and

the other villagers' homes and livestock, and their forced abandonment

of their village, home and livelihood were effected for purposes

incompatible with the Convention.

As to Article 1 of the Protocol, he complains of the destruction

of his and his brother's home and property.

As to the exhaustion of domestic remedies, the applicant states

that no remedies are effective in South-East Turkey against the acts

of the security forces. He also refers to the fact that he petitioned

the Chief Public Prosecutor without receiving a reply as well as to

arguments made in application No. 21895/93, Cagirga v. Turkey (declared

admissible on 19 October 1994).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 March 1994 and registered

on 10 March 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.

On 11 October 1994 the Government requested an extension of the

time-limit for the submission of observations.

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

the Government that their request of 11 October 1994, after the expiry

of the time-limit, had been refused by the President of the Commission

on the ground that more than five 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 and 25 January 1995. Observations in reply were

submitted on behalf of the applicant on 13 March 1995 after one

extension of the time-limit fixed for this purpose.

THE LAW

The applicant complains, in his own name and on behalf of his

brother, of a military raid on their village, in the course of which

their homes 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 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).

The Government argue that, since the events complained of took

place in December 1992 and the application was introduced on 1 March

1994, the applicant has not 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.

They furthermore dispute that the applicant applied to the Chief

Public Prosecutor of Diyarbakir on 20 May 1993, but even if that was

the case, the application should have been introduced within six months

following that appeal.

The applicant argues that he did not appeal to the Chief Public

Prosecutor until five months after the events as he assumed an

investigation had already commenced. He submits that failure to

acknowledge receipt of such communications is not uncommon in South-

East Turkey. Moreover, the suggestion from the Government that he burnt

down his own house is logically inconsistent with the allegation that

he never made a complaint. In any event, the applicant relies upon the

non-existence of domestic remedies, referring to the Commission's

findings in this respect in Application No. 22280/93, Demir v. Turkey

(Dec. 9.1.95).

The Commission recalls in the first place that the purpose of the

six months' rule is to promote security of law and to ensure that cases

raising issues under the Convention are dealt with within a reasonable

time. Furthermore it ought also to protect the authorities and other

persons concerned from being under any uncertainty for a prolonged

period of time (cf. No. 10626/83, Dec. 7.5.85, D.R. 42 p. 205).

The Commission notes that, in the applicant's opinion, there is

no effective domestic remedy in respect of the violations of the

Convention of which he complains. In this respect, the Commission

recalls that in other cases regarding destruction in villages in South-

East Turkey the Commission has found that applicants were not in the

circumstances of those cases required under Article 26 (Art. 26) of the

Convention to pursue domestic remedies before complaining to the

Commission (see, for instance, No. 21893/93, Akdivar and others,

Dec. 19.10.94).

However, the Commission has repeatedly held that in the absence

of domestic remedies the six months' period runs from the act

complained of in the application (cf. No. 10530/83, Dec. 16.5.85, D.R.

42 p. 171; and No. 10389/83, Dec. 17.7.86, D.R. 47 p. 72). In the

instant case, the acts complained of took place in December 1992.

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.

In the present case, the applicant states that he sent a letter

of complaint to the Chief Public Prosecutor on 20 May 1993. However,

already before that date he had apparently taken steps to prepare an

application to the Commission, which appears from the fact that his

power of attorney to his representatives before the Commission is dated

already 27 March 1993. Moreover, on 20 May 1993, a lawyer in Turkey,

who assisted the applicant, stated in a written comment on the case

that it was meaningless to use domestic legal remedies in cases such

as that of the applicant.

In view of these various elements, the Commission considers that,

assuming that there were no effective remedies in the present case, the

applicant or those representing him must be considered to have been

aware, not later than in May 1993, of this situation. The application

should therefore in any event have been introduced not later than

November 1993.

The Commission finds, therefore, that the application has been

introduced out of time and is inadmissible under Articles 26 and 27

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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LAÇiN v. TURKEY

LAÇiN v. TURKEY