Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22309/93

by Ahmet (son of Mehmet), Ahmet (son of Sabri)

and Bedrettin ISIYOK

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. SVÁBY

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 9 July 1993 by

Ahmet (son of Mehmet), Ahmet (son of Sabri) and Bedrettin ISIYOK

against Turkey and registered on 23 July 1993 under file No. 22309/93;

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 31 January 1995 and the information and

observations in reply submitted by the applicants on

12 April 1994 and 6 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Turkish nationals, of Kurdish origin, are members

of the same family living in the Diyarbakir province in south-eastern

Turkey. The first two applicants are cousins and the third applicant

is the nephew of the first applicant. They were born in 1950, 1951 and

1974 respectively. The second applicant's son, Burhan, acts in this

case on behalf of his father.

The applicants are represented before the Commission by Professor

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

University of Essex.

The facts as submitted by the parties may be summarised as

follows.

A. The particular circumstances of the case

The applicants claims that the following events occurred.

Three paternal cousins lived in the hamlet of Çekirdek. They were

Abdulhamit (also known as Hamit), Ahmet, who is the son of Mehmet and

is the first applicant, and Ahmet, who is the son of Sabri and is the

second applicant. Abdulhamit was married to Halime, the sister of

Ahmet, son of Mehmet. The third applicant is their son. He acts in his

own right and on behalf of his parents and siblings.

At around 9.00 on 12 January 1993, three military helicopters

were seen over the village. The village was bombed from the helicopters

until 11.00. At around 12.30, one of the helicopters was seen again,

followed by two jets. At this point, the first applicant took his four

children into a corner of the house and was about to go and check the

animals in their fold. Before he could go outside, there was a great

explosion and his home collapsed. The bombing lasted for about one and

a half hours in the first applicant's recollection. When it was over

and the first applicant realised that he could not get out of the

ruins, he called for villagers to come and rescue him. He realised that

three of his ribs were broken and that he was bruised all over. Later

he saw that his sister Halime, her husband and three of their children

had been killed. Five houses had been destroyed and others had become

uninhabitable.

As a result of the bombing, the first applicant had his ribs

broken and was bruised. His family home was destroyed, the family's

animals (two cows, one calf, eighteen goats and one ox) were killed and

the feedstock for the animals was destroyed by burning. The second

applicant's family home was destroyed and the family's animals (four

cows and sixteen goats/two cows and eighteen goats in latest statement)

were killed. The third applicant's parents and three of his siblings

were killed in the bombing, their family home was destroyed and the

family's animals (five cows, five sheep and twenty-five goats) were

killed.

In official statements on the incident, the State authorities

claimed that the PKK (Kurdish Workers' Party - an armed separatist

movement) was responsible for the killing, which the applicants find

untrue since the PKK has neither planes nor helicopters. The gendarmes

station commander claimed that a rock had rolled into a house and

destroyed it. No prosecutor or judge visited the scene of the incident.

The mayor completed a report on the basis of the statement of the

gendarmes station commander. The applicants submitted a complaint to

the mayor, asking for autopsies and for an investigation to be carried

out. The villagers applied orally to the governor, who simply refuted

what they said. The applicants applied to the prosecuting authorities

and the State of Emergency Governorship, but they received no reply and

they have been unable to get the governor to accept a written

application. The second applicant's son states that, since they

contacted the Diyarbakir branch of the Human Rights Association with

a view to submitting a case to the European Commission of Human Rights,

they have received threatening telephone calls.

As a result of the destruction of their homes, members of the

families of the second and the third applicants have been forced to

live apart.

The respondent Government state the following.

On 20 January 1993, the third applicant forwarded his allegations

to the district governor of Kulp, requesting an investigation into the

incident. Upon this, the public prosecutor of Kulp district instituted

an investigation into the complaints. The public prosecutor opened a

file also to enquire into allegations concerning the injuries of the

first applicant and another person. On 19 0ctober 1993 and

14 September 1994 respectively, the public prosecutor issued decisions

that he lacked jurisdiction. The files were transferred to the District

Administrative Board under the special procedure for the prosecution

of public officers, where they are still pending investigation. The

Government refer to the difficulties caused to the judicial process due

to the terrorist activities, stating that in September 1992 a judge and

public prosecutor were killed by terrorists.

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 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 applicants complain 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, they refer to the fact that the parents and

three siblings of the third applicant were killed and that the lives

of the first and the second applicants were endangered without lawful

excuse. They also claim a violation of Article 2 on account of the lack

of any effective system for ensuring protection of the right to life

and of the inadequate protection of the right to life in domestic law.

As to Article 3, they refer to an inhuman and degrading practice

of clearing villages, a form of collective punishment, and to

discrimination on grounds of race and ethnic origin.

As to Article 5, they complain of complete lack of security of

the person.

As to Article 6, they complain of the impossibility of

challenging the deprivation of property before it took place, which

they see as a denial of access to court, and of the failure to initiate

proceedings before an independent and impartial tribunal against those

responsible for the killings and life-threatening attacks and

destruction of property, as a result of which they cannot bring civil

proceedings arising out of the killings, attacks and destruction.

As to Article 8, they refer to the destruction of their homes and

to the destruction of family life in the case of the second and the

third applicants, since the members of their families have to live

apart as a result of the destruction of their homes.

As to Article 13, they complain of the lack of any independent

national authority before which their complaints can be brought with

any prospect of success.

As to Article 14, they complain of discrimination in the

enjoyment of their rights under Articles 2, 3, 5, 6 and 8 of the

Convention and Article 1 of the First Protocol. They refer to an

administrative practice of discrimination on account of race or ethnic

origin.

As to Article 18, they claim that the interferences in the

exercise of the Convention rights are not designed to secure the ends

permitted under the Convention.

As to Article 1 of the First Protocol, they complain of the

destruction of their possessions and means of livelihood.

As regards the exhaustion of domestic remedies, the applicants

point out that they have tried to have the incident investigated. They

have requested autopsies and they have petitioned the mayor and the

governor but to no avail. They further claim that any alleged remedy

is illusory, inadequate and ineffective because:

(a) the operation which led to the killings and destruction was

officially organised, planned and executed by the agents of the State,

(b) there is an administrative practice of non-respect of the

rule 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, and

(d) whether or not there is an administrative practice, the

situation in the south-east of Turkey is such that potential applicants

have a well-founded fear of the consequences, should they invoke

alleged remedies.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 July 1993 and registered on

23 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. The applicants supplied further

information on 12 April 1994 and their observations in reply were

submitted on 6 June 1994.

On 8 December 1994, the Commission refused the Government's

request for the case to be adjourned pending the investigation of the

public prosecutor and requested the Government to submit any further

observations which they wished to make before 23 January 1995.

The Government submitted further information on 31 January 1995.

THE LAW

The applicants allege that on 12 January 1993 attack by

helicopter and jet aircraft was made on their village during which

members of the third applicant's family died, the first applicant was

injured and the applicants' homes, property and livestock were

destroyed. The applicants invoke Article 2 (Art. 2) of the Convention

(the right to life), 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 against discrimination) and Article 18 (Art. 18) (the

prohibition on using authorised Convention restrictions for ulterior

purposes), as well as Article 1 of Protocol No. 1 (P1-1) 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 of an abstract, or "actio

popularis" nature;

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 applicants' complaints refer to

specific allegations of injury and damage suffered by them in violation

of their rights. The applicants' 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 (Art. 25-1) 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 (Art. 26) of the Convention.

The Government pointed in their first response to the applicants'

complaints that there were ongoing investigations by the public

prosecutor of Kulp into the complaints arising out of the alleged

incident which occurred on 12 January 1993. Following the decisions by

the public prosecutor that he lacked jurisdiction taken on 19 October

1993 and 14 September 1994, the Government now submit that the matters

are under investigation by the District Administrative Board.

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 applicants have the

possibility of introducing an action against the administration for

compensation in accordance with, inter alia, Article 8 of Decree 430

of 16 December 1990.

The applicants maintain that there is no requirement that they

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 the agents of

the State. They refer to an administrative practice of unlawful

killings and destruction of property and of not respecting the

requirement under the Convention of the provision of effective domestic

remedies.

Further, the applicants submit 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 successful cases against the Regional Governor for

compensation under the State of Emergency Law; an official attitude of

legal unaccountability towards the security forces; 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 investigations by the public prosecutor of Kulp

referred to by the Government, the applicants submit that there is no

information as to how the alleged pending investigation into the deaths

is proceeding.

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

been established that they had at their disposal adequate remedies

under the state of emergency to deal effectively with their complaints.

As regards the allegations with regard to the destruction of the

applicants' homes and property, the Commission refers to its findings

in Application No. 21893/93, Akduvar and others v. Turkey (Dec.

19.10.94) which concerned 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.

While the Government now refers to the pending investigation

before the District Administrative Board following the decisions of the

public prosecutor that he had no jurisdiction, the Commission notes

that the incident has been under investigation since about the end of

January 1993. In view of the delays involved, more than two years since

the incident took place, the Commission is not satisfied that this

inquiry can be considered as furnishing an effective remedy for the

purposes of Article 26 (Art. 26) of the Convention.

The Commission finds therefore that in the circumstances of this

case the applicants are not required to pursue any further legal remedy

concerning their complaints (see eg. No. 19092/91, Yagiz v. Turkey,

Dec. 11.10.93, 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 (Art. 26, 27-3) of the Convention.

As regards the merits

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 District

Administrative Board.

The applicants maintain their 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 (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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AHMET (son of Mehmet), AHMET (son of Sabri) and ISIYOK v. TURKEY

AHMET (son of Mehmet), AHMET (son of Sabri) and ISIYOK v. TURKEY

LEXI