Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23655/94

by Mehmet Can ÇELiK

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 2 March 1994 by

Mehmet Can ÇELiK against Turkey and registered on 10 March 1995 under

file No. 23655/94;

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 13 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, born in 1964,

resides at the village of Tepecik in the Kocaköy district of

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. 23654/94, Laçin v. Turkey).

All these applications concern complaints arising from substantially

the same incidents as in the present case.

The applicant resided 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, then 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, including the applicant's house,

were set alight and demolished. In addition to the applicant's

property, namely 20 sheep, 1.5 tons of wheat, a ton of barley, 30

chickens and 30 turkeys, everything in the homes of the applicant and

the other villagers was 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 has not been processed and no inquiry has 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 remain unanswered. It concludes that as long

as this situation persists 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

burnt. 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.

The applicant's house was however not damaged following the above

events, but he set fire to it himself in order to claim compensation

for damages from the Government at a later date.

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, 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 a various breaches of his right

to liberty and security of the 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 the destruction of his home.

Alternatively, he submits that the expulsion did not pursue a

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

As to Article 13, he complains of a 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 refers to an authorised practice by the

State according to which the destruction of his 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 Protocol No. 1, he complains of the

destruction of his 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 2 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. The

time-limit was extended at the Government's request until

30 September 1994.

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

the Government that their request of 11 October 1994 for a further

extension 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. 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 alleges that a military raid took place 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 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, if as the applicant submits there were

no effective remedies, the application should have been introduced

within six months from the events in December 1992 and since it was not

introduced until 2 March 1994, the applicant has not complied with the

requirement imposed by Article 26 (Art. 26) of the Convention.

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 applications made to the authorities in circumstances such as

those of the applicant almost invariably remain unanswered and that it

is meaningless in such cases to use domestic legal remedies.

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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ÇELiK v. TURKEY

ÇELiK v. TURKEY