Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22676/93

by Mehmet GÜL

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 25 August 1993 by

Mehmet GÃœL against Turkey and registered on 23 September 1993 under

file No. 22676/93;

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

28 April 1994 and the observations in reply submitted by the

applicant on 5 July 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1944 and resides at Bozova in the Province of Sanliurfa.

The applicant 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 on his own behalf and on behalf of his deceased son Mehmet

Gül.

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.

The applicant's son, Mehmet Gül, was killed in his home, situated

at Sanayi Caddesi No. 27 at Bozova, in the morning of 8 March 1993,

when he was repeatedly shot through his apartment front door by

security forces. He sustained a total of 61 bullet wounds and died on

his way to hospital. The circumstances of the killing were as follows:

A number of searches were being conducted by a combined group of

police from the town of Bozova and special teams of police. Houses

next to the applicant's were searched without incident several hours

earlier in the evening of 7 March 1993. The search of the applicant's

son's residence began about 01.00 on 8 March 1993. A team of police

surrounded the house, others approached the entrance door, switched off

the electricity from outside the apartment, and banged on the door

calling on it to be opened.

While the victim, who had gone to bed, was asking from behind the

locked door who was there, firearms were fired from outside penetrating

the door. The victim was hit by the bullets. It appears from

photographic evidence that after he had been shot he attempted to find

a light switch and also attempted to open the door. It is then claimed

that the police continued to fire spraying him with bullets. Three

fingers were broken off in the shooting and his hand remained stuck to

the door post.

The applicant, who slept in the apartment above, woke up at the

sounds of the shootings. As he tried to go downstairs the police

turned their guns on him and threatened to shoot. The applicant said:

"What do you think you are doing ? I am Mehmet Gül, I have no

connections with anything illegal. Everybody knows me, from the

Sanliurfa Governor to the police in Bozova and they know I am on

the side of the State."

The police in front of the door, whom the applicant identifies

as special team officers, said that his son was not opening the door.

He shouted inside to his son asking why he was not opening the door.

His son's wife screamed back that his son was lying in a pool of blood

and sprayed with bullets from the police outside. The door had jammed

as a result of the shooting and the applicant helped to kick it free.

He found his son wounded and bleeding inside.

When, with the help of his other son Mustafa, he carried his

wounded son on his back to the hospital, the applicant states that none

of the assembled police or military personnel surrounding the apartment

and in its vicinity (whom he estimates numbered some 150-200) offered

to help in any way. His son died on the way to the hospital.

The official account released by the Governor's office to the

media stated:

"A terrorist by the name of Mehmet Gül was killed in a clash with

security forces in Bozova and two illegal pistols were seized."

The applicant states that the two guns were planted in the house

by the police when the applicant and his family were taking his son to

hospital. When the police entered the house, they also removed most

of the spent bullets and gold belonging to the victim's wife. However,

some of the cartridges and bullet pieces were not found by the police

and were later photographed.

A number of photographs were taken after the killing. Eighteen

photographs have been submitted to the Commission. Each photograph is

numbered with a handwritten explanation on the reverse side.

Some photographs show the inside and outside of the door through

which the victim was killed. Other photographs show clearly the

entrance hall way in which the applicant had been standing bearing the

full force of sustained fire through the closed door. Others show his

attempts while wounded to turn on lighting which had been cut off from

the outside by the police. The photographs offer vivid evidence of the

indiscriminate nature and the intensity of the firing from outside the

apartment.

AAccording to neighbours, after the applicant had left for the

hospital with his son, police left the house and a gun shot was heard

before they re-entered again. The applicant believes that the police

fired a round from one of the planted guns. This was done in order

that one of the guns claimed by them to have been fired from within the

house, would be found to have been recently fired. He maintains that

there were no weapons in the house prior to the incident.

The autopsy report dated 8 March 1993 referred to the death of

the applicant as the result of an accident in an operation carried out

jointly by gendarmes and police.

The Government state the following.

In response to information received that the applicant's sons

Mehmet and Mustafa Gül were connected with the PKK (the Kurdish

Workers' Party - an armed separatist movement), the security

authorities sent a team to search their homes on 7 March 1993 at about

20.30. When the officers arrived outside the door, they demanded,

loudly, for the doors to be opened. They were fired upon. The officers

then fired at the door around the lock in order to gain entry to the

house. The applicant's son, Mehmet Gül, died as a result of this fire.

The public prosecutor of the Bozova district instituted a

preliminary investigation. On 17 March 1993, he issued the decision

that he had no jurisdiction and referred the file to the Administrative

Board of the Province as the competent body. The investigation has yet

to be concluded by the Board.

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 a civil servant, 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

For criminal 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 within fifteen days of being

notified (Article 165 of the Code of Criminal Procedure).

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, 6 and 13 of

the Convention.

As to Article 2, the applicant alleges that his son was a victim

of the indiscriminate use of lethal force by the security forces of the

State and that he was killed in circumstances where no justification

existed under Article 2.

As to Articles 6 and 13, the applicant alleges that the police

sought to pervert the course of justice by planting two guns after the

killing in order to claim that his son had fired at the police from

inside the house. This rendered his son a victim of a violation of

Articles 6 and 13.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 August 1993 and registered

on 23 September 1993.

On 10 January 1994, 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 28 April 1994

after one extension in the time-limit and the applicant's observations

in reply were submitted on 5 July 1994.

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

request to adjourn the examination of the case pending the

investigation by the public prosecutor and requested them to submit any

further observations which they might wish to make by 23 January 1995.

THE LAW

The applicant complains that his son was the victim of an

unjustifiable use of lethal force by the police. The applicant invokes

Article 2 (Art. 2) of the Convention (the right to life), Article 6

(Art. 6) (the right of access to court) and Article 13 (Art. 13) (the

right to effective national remedies for Convention breaches).

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 before lodging an application

with the Commission.

The Government point out that there is an ongoing investigation

by the Administrative Board of the Province. If the Board deems the

officers involved to be culpable, it may authorise criminal proceedings

in which the applicant could intervene. If the Board however issued a

decision of dismissal, the applicant could lodge an objection with the

State Council. Since the inquiry has yet to be completed, the

Government submit that internal domestic remedies have not been

exhausted in this regard.

Further, independently of any criminal proceedings, the

Government submit that the applicant has the possibility of introducing

an action against the administration for compensation for the loss of

life of his son in accordance with the provisions of Turkish law which

render the administration responsible for the loss and damages caused

by the acts of its agents.

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 the agents of

the State. He refers to an administrative practice of unlawful killings

and of not respecting the requirement under the Convention of the

provision of effective domestic remedies.

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;

positive discouragement of those attempting to pursue remedies; an

official attitude of legal unaccountability towards the security

forces; and the lack of any prosecutions against members of the

security forces for alleged extra-judicial killings.

In respect of the investigation by the Administrative Board of

the Province, the applicant submits that no progress is apparent

despite all the material evidence being in the possession of the

Government.

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 under

the state of emergency to deal effectively with his complaints.

While the Government refers to the pending investigation by the

Administrative Board of the Province, the Commission notes that the

investigation has made no apparent progress almost two years later. 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 (Art. 26) of the Convention, in particular

having regard to the circumstances of this case where the relevant

evidence would appear to be easily accessible to the authorities and

no explanation has been given as to any obstacles in the way of

bringing the investigation to a conclusion.

The Commission also considers that it cannot be said at this

stage that the applicant's fear of reprisal if he pursues his

complaints before the authorities 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 separate

to the investigation commenced by the public prosecutor and referred

to the Administrative Board (see eg. No. 19092/91, Yagiz v. Turkey,

Dec. 11.10.93, D.R.75). The Commission concludes that the applicant may

be said to have complied with the domestic remedies' rule laid down in

Article 26 (Art. 26) of the Convention and consequently, the

application cannot be rejected for non-exhaustion of domestic remedies

under Article 27 para. 3 (Art. 27-3) of the Convention.

As regards the merits

The Government have asserted that the applicant's son was killed

at about 20.30 on 7 March 1993 when police returned fire in an

operation undertaken to search his house in light of information that

he was involved with the PKK. They have not otherwise commented on the

substance of the applicant's complaints beyond asserting that they are

under investigation by the Administrative Board of the Province.

The applicant maintains his account of events and refutes the

assertion that his son was involved with the PKK or that the police

came under fire as alleged by the Government.

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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GÜL v. TURKEY

GÜL v. TURKEY