AS TO THE ADMISSIBILITY OF

Application No. 22281/93

by S i dd i k YA S AR

against Turkey

The European Commission of Human Rights sitting in private on 3 April 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. ŠVÁBY

Mr. H.C. KRÃœGER, 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 21 June 1993 by S i dd i k YA S AR against Turkey and registered on 19 July 1993 under file No. 22281/93;

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 22 April 1994 and the observations in reply submitted by the applicant on 21 June 1994 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen of Kurdish origin, was born in 1956 and lives at Diyarbakir. He 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 he brings the application in his own name and in the name of his deceased wife and child.

The facts as submitted by the parties may be summarised as follows.

A. The particular circumstances of the case

The applicant claims that the following events occurred.

On a day or days over the weekend of 19-22 December 1992, Turkish security forces and local village "protectors" acting under the control of the security forces entered the village of Tepecik near the town of Kocaköy, Diyarbak i r. This raid, which extended over several days, followed an incident in which a member of the PKK-supporting militia and a "protector" had been killed.

On 19 December 1992, members of the Government forces threw a grenade into the applicant ' s house and killed his wife Yezal Yasar and his child Veysi Yasar. The applicant did not witness the attack but learned that his wife and child had been killed on or shortly before 22 December 1992. The Government forces also killed, by the same means, a number of other villagers.

At about 08.00 on 22 December 1992, "protectors" arrived from other villages by car. Five of them began to fire on villagers in the village square. They wounded a number of villagers.

Shortly afterwards members of the Turkish security forces and more "protectors" arrived in the village and began to set fire to most of the village houses one by one. Meanwhile, acting in groups of 5 or 10, they forced the villagers who were fleeing from their burning houses to lie on the ground, where they were beaten. Most animals of the village livestock were killed. These activities continued on that day until about 16.30, that is for some eight and a half hours.

During the attack, the villagers, including the applicant, lost their homes and possessions and were obliged to leave the village. A number of persons were taken into custody. The authorities refused the applicant and the other villagers permission to bury the bodies of those who had been killed. Instead, the bodies were brought to Diyarbakir where they were buried.

The applicant, on a date after 22 December 1992, made a verbal application in order to complain about the incidents to the Diyarbak i r prosecution. The public prosecutor told him not to intervene too much and asked him to close the subject. For fear that his life would be endangered, the applicant was reluctant to make any application to a higher authority.

The respondent Government state the following.

On 17 December 1992, a rural minibus shuttling between Tepecik and Arkabasi was waylaid by PKK terrorists (Kurdish Workers ' Party - an armed separatist movement) who required the passengers to identify themselves and then shot one who was a village "protector". Subsequently there was an armed clash in Tepecik between the PKK and the security forces, which lasted until 20 December 1992 during which nine members of the PKK and one village protector died. The security forces arrested seven people with weapons suspected of having been involved in the fighting and previous terrorist incidents.

On 1 February 1993, the public prosecutor filed a criminal action in the State Security Court at Diyarbakir in which the indictment concerned amongst others the seven persons arrested at Tepecik and charged them with, inter alia, killing a village protector and two soldiers.

An inquiry was also commenced in or about the end of 1992 by the public prosecutor of Diyarbakir concerning the deaths of persons arising out of the events on 17 December 1992. It is still in progress.

The Government reject the allegation that the public prosecutor of Diyarbakir disregarded the oral complaint made by the applicant.

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."

Proceedings before the administrative courts are in writing.

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. Damage caused by terrorist violence may be compensated out of the Social Help and Solidarity Fund.

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 make an unlawful search of someone ' s home (Articles 193 and 194),

-to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),

-to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or

-to damage another ' s property intentionally (Article 526 et seq.).

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 all these 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 pursuant to Article 165 of the Code of Criminal Procedure.

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).

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 Executive Committee of the Provincial Assembly or Departmental Administrative and District 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.

Emergency measures

Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.

Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.

Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree 285, as amended by Decrees 424 and 425, and Decree 430.

Decree 285 modifies the application of Law 3713, the Anti-Terror Law (1981), in those areas subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.

Article 8 of Decree 430 of 16 December 1990 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."

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of the First Protocol.

As to Article 2 , he refers to the intentional deprivation of life which he considers not to be attributable to any of the purposes indicated in para. 2 of Article 2 or, alternatively, to it being attributable to a use of lethal force disproportionate to any lawful ground on which such force could be used. He also states that the degree of force used was more than "absolutely necessary" to achieve any legitimate purpose and that there was a failure adequately to protect the right to life by initiating legal proceedings to determine whether or not those responsible for the deaths acted unlawfully. There was also, in his opinion, an inadequate protection of the right to life in domestic law.

As to Article 3 , the applicant refers to the collective punishment of the villagers of Tepecik, including the applicant.

As to Article 5 , the applicant refers to a breach of his right to the exercise of liberty and the enjoyment of security of the person; further, deprivation of his freedom of movement and liberty and security of the person by arbitrary expulsion from his village through a procedure not sanctioned by Article 5 para. 1; further, expulsion by means not prescribed by law.

As to Article 6 , the applicant complains of failure to initiate proceedings before an independent and impartial tribunal against those responsible for the killings and injuries, as a result of which the applicant cannot bring civil proceedings arising out of those events, this being a denial of effective access to court.

As to Article 8 , the applicant refers to a violation of his right to family life and respect for his home by reason of his arbitrary expulsion from his village and the destruction of his home. He points out that the expulsion did not pursue a legitimate aim under para. 2 of Article 8.

As to Article 13 , he alleges that there is a lack of any independent national authority before which his complaints can be brought with any prospect of success.

As to Article 14, the applicant alleges that he and his next of kin have been discriminated against on the ground of their Kurdish origin in the enjoyment of their rights under Articles 2, 3, 5, 6, 8 and 13 of the Convention and Article 1 of the First Protocol.

As to Article 18 , he refers to the destruction of his and the other villagers ' homes and livestock, their forced abandonment of their village, home and livelihood for purposes incompatible with the Convention.

As to Article 1 of the First Protocol, the applicant refers to the destruction of his home.

The applicant maintains that there is no requirement that he pursue alleged domestic remedies. According to him, any alleged remedy is illusory, inadequate and ineffective because

a) the operation which led to the killings in question in this case was officially organised, planned and executed by the agents of the State;

b) there is an administrative practice of not respecting the rule under Article 13 of the Convention which requires the provision of effective domestic remedies;

c) whether or not there is an administrative practice, domestic remedies are ineffective in this case owing to the failure of the legal system to provide redress;

d) whether or not there is an administrative practice, the situation in South-East Turkey is such that potential applicants have a well-founded fear of the consequences, should they invoke alleged remedies.

As regards observance of the six month rule, the applicant points out that the killings took place on 19 December 1992 and the destruction of property on 22 December 1992. However, the applicant considers that the period of six months should run from the later date of his application to the public prosecutor. The application to the Commission was introduced on 21 June 1993, which was within six months of the verbal application to the public prosecutor, alternatively within six months of the incidents described. Alternatively, with regard to the killings, the applicant submits that Saturday 19 June and Sunday 20 June 1993 should not be taken into account in calculating the six month time-limit.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 June 1993 and registered on 19 July 1993.

On 11 October 1993, 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 22 April 1994 after two extensions in the time ‑ limit and the applicant ' s observations in reply were submitted on 21 June 1994.

On 8 December 1994, the Commission rejected the Government ' s request for the examination of the application to be adjourned pending the investigation by the public prosecutor and invited the Government to submit any further observations which they might wish to make before 23 January 1995.

No further observations from the Government were received.

THE LAW

The applicant alleges that from 19 to 22 December 1992 his village was subject to attack by State security forces. During the raid, grenades were thrown into his house causing the death of his wife and child. He claims that villagers were shot and beaten and that the village livestock was slaughtered. Houses were set on fire, and the villagers, including the applicant, their homes and possessions destroyed, were obliged to evacuate the village. The applicant invokes Article 2 of the Convention (the right to life), Article 3 (the prohibition on inhuman and degrading treatment), Article 5 (the right to liberty and security of person), Article 6 (the right of access to court), Article 8 (the right to respect for family life and the home), Article 13 (the right to effective national remedies for Convention breaches), Article 14 (the prohibition against discrimination) and Article 18 (the prohibition on using authorised Convention restrictions for ulterior purposes), as well as Article 1 of Protocol No. 1 to the Convention (the right to property).

The Government argue that the application is inadmissible for the following reasons:

i. the applicant ' s complaints are abstract and by way of "actio popularis";

ii. the application is an abuse of the right of petition;

iii. the applicant failed to exhaust domestic remedies.

Complaints abstract and by way of "actio popularis"

The Government point to what they allege is the abstract and "actio popularis" nature of this application.

The Commission notes that the applicant ' s complaints refer to specific allegations of injury and damage suffered by him in violation of his rights and the rights of his wife and child. The applicant ' s submissions as to alleged administrative practices do not thereby render the complaints abstract and general. The Commission finds accordingly that the complaints fall within its competence under Article 25 para. 1 of the Convention.

Abuse of the right of petition

The Government submit that this application forms part of an organised campaign being pursued for the purposes of political progaganda against the Turkish Government. This, they submit, constitutes an abusive exercise of the right of application to the Commission.

The Commission considers that the Government ' s argument could only be accepted if it were clear that the application was based on untrue facts. However, this is far from clear at the present stage of the proceedings, and it is therefore impossible to reject the application on this ground.

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 of the Convention.

The Government submit that the applicant has failed to raise any complaint with the competent public prosecutor or other relevant authority and rejects the allegation that the applicant ' s oral complaint was disregarded by the public prosecutor of Diyarbakir. The Government also point out that in any event there is an ongoing investigation by the public prosecutor into the deaths which occurred on 19 December 1992. If the investigation results in the filing of a criminal action, the applicant would have the possibility of joining the case as an intervenor, while if there is a decision not to prosecute the applicant may appeal pursuant to article 165 of the Code of Criminal Procedure.

In respect of damage or loss of life alleged to have been caused by the State or its agents during the course of the operations of the security forces, the Government submit that the applicant had the possibility of introducing an action against the administration for compensation in accordance with, inter alia, Article 8 of Decree 430.

The applicant maintains that there is no requirement that he 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. None of the remedies suggested by the Government could be regarded as effective, in the applicant ' s view, because the scale of destruction of villages, as well as the expulsion and creation of internal refugees, is so great in South-East Turkey that this must be considered high-level Government policy - an administrative practice -in regard to which all remedies are theoretical and irrelevant.

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 if they pursue remedies; the lack of genuine investigations by public prosecutors and other competent authorities; the absence of any cases showing the payment of adequate compensation to villagers for the destruction of their homes and villages, or for their expulsion; and the lack of any prosecutions against members of the security forces for the alleged offences connected with the destruction of villages and forcible expulsions.

In respect of the criminal proceedings and investigation referred to by the Government, the applicant submits that the trial of alleged separatists appears to have no relevance to the exhaustion of remedies by the applicant and that there is no information as to how the alleged pending investigation into the deaths is proceeding.

The Commission recalls that Article 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 under the state of emergency to deal effectively with his complaints.

As regards the allegations with regard to the destruction of the applicant ' s village and its forced evacuation, the Commission refers to its findings in Application No. 21893/93, Akduvar and others v. Turkey (Dec. 19.10.94) which concerned similar complaints of the destruction of homes and forcible expulsion. 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 the 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.

As regards the applicant ' s complaints alleging the killing of his wife and child, the Commission recalls that the applicant made an oral complaint to the public prosecutor. While the Government contest that this complaint was rejected in the way alleged by the applicant, it appears that in any event there is a pending inquiry by the public prosecutor into the deaths which occurred on 19 December 1992. It appears however that the investigation which commenced in or about the end of 1992 has made no progress. The Commission is not satisfied in view of the delays involved that this inquiry can be considered as furnishing an effective remedy for the purposes of Article 26 of the Convention.

The Commission reiterates its finding in the context of the Adkduvar case (loc. cit.) that it cannot be said at this stage that the applicant ' s fear of reprisal if he pursues his complaints more vigorously is wholly without foundation.

The Commission finds therefore that in the circumstances of this case the applicant is not required to pursue any legal remedy concerning the deaths of members of his family in addition to the public prosecutor ' s inquiry (see eg. No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, to be published in D.R. 75).

The Commission concludes that this application cannot be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 of the Convention.

Six month time-limit

The Commission has examined whether the applicant has complied with the requirement imposed by Article 26 of the Convention that an application must be introduced within six months of the final decision taken in respect of the complaints. The case-law of the Commission establishes that where no domestic remedy is available, the six month period runs from the act complained of (see eg. No. 10530/83, Dec. 16.5.85, D.R. 42 p. 171).

In the present case, the Commission recalls that the applicant complains of acts of the security forces which took place over a period of several days, namely, 19-22 December 1992. In these circumstances, the question arises whether the complaints insofar as they relate to specific acts carried out on 19 December 1992 have been introduced out of time, given that the application was introduced on 21 June 1993.

From the applicant ' s submissions, it appears that he was not present when his wife and child were killed on 19 December 1992 and that he did not learn of it until, or shortly before, 22 December 1992. The Commission notes that the applicant ' s complaints arise out of an operation conducted by the security forces which took place over a period of days which culminated in the forcible evacuation of the village by the applicant and other villagers. There is sufficient proximity in time, location and nature of the acts complained of to render them, for the purposes of Article 26 of the Convention, part of one episode or event. The Commission has also had regard to the consideration that it could not have been practicable for the applciant to take steps to complain until the conclusion of the operation in the village. The Commission accordingly considers that in the circumstances of the present case the relevant date for the purposes of six month time-limit should not be considered to be a date earlier than 22 December 1992.

It follows that the applicant ' s complaints have been introduced within the six month time-limit imposed by Article 26 of the Convention.

As regards the merits

The Government submit that security forces were in operation in or about the village from 17 to 22 December 1992 in conflict with armed members of the PKK, seven suspected members of that organisation being arrested during that period and now facing criminal charges. The Government reject the applicants ' allegations that there is an administrative practice to violate human rights in conjunction with discrimination against Turkish citizens of Kurdish origin and refer to the terrorist assault on the State by the PKK in face of which the Government is striving to maintain security and order. The Government have not otherwise commented on the substance of the applicants ' complaints which it states are under investigation by the public prosecutor of Diyarbakir.

The applicant maintains his 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 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. KRÃœGER) (C.A. NØRGAARD)