I.S. v. TURKEY
Doc ref: 22680/93 • ECHR ID: 001-2105
Document date: April 3, 1995
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AS TO THE ADMISSIBILITY OF
Application No. 22680/93
by I.S.
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
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 27 August 1993 by
I.S. against Turkey and registered on 23 September 1993 under file
No. 22680/93;
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
1 June 1994 and the observations in reply submitted by the
applicant on 19 July 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1970 and resides at Cizre, Inci Koyu. He is represented before the
Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both
university teachers at the University of Essex.
A. The particular circumstances of the case
The facts as submitted by the applicant may be summarised as
follows:
The applicant's father had been the mayor of the village of
Sugeldi in Çatak for 23-24 years. Since the village did not want to
accept the so-called "protection" system, there was harassment and
persecution of the village generally and of the applicant's father in
particular. Security officers repeatedly threatened the mayor with
"Either you become a protector or you leave the village". In the
summer of 1990, the applicant's father was taken into custody and
subjected to torture for 14 days at Van Province Gendarme Headquarters.
He was tried at Diyarbakir State Security Court and acquitted. The
persecution of the village and of the mayor continued. In August 1991,
the applicant's father was taken into custody and subjected to torture
for 8 days at Van Province Gendarme Headquarters. A case was again
opened against the applicant's father at Diyarbakir State Security
Court and, again, he was acquitted.
After the acquittal, the applicant's father and the village were
again subject to intense pressure to make them accept "protection".
About once a month, village meetings were held in which the mayor of
Çatak district and the Gendarme Commander participated. As a result
of the pressure put on villagers at these meetings, two villagers
(Idris Sancar and Suphi Isnas) agreed to become "protectors". As a
consequence of their decision, PKK guerrillas organised an armed attack
on those villagers who had agreed to become "protectors". Eight people
from the families of the two "protectors" and two PKK activists were
killed in the attack.
The families of the "protectors" claimed that the applicant's
father collaborated in the attack and that Semsettin Saday, the
applicant's brother who lived in Cizre, was actually involved in the
incident. In fact, the applicant's father was in Çatak town on
business that night and his brother was able to prove that he had been
in an examination for his primary school certificate at the time.
The day after the attack, the applicant's father returned from
Çatak to take part in the funerals of the families of the "protectors".
The "protectors", however, held him responsible for the incident and
threatened him. During the funeral ceremony, Idris Sancar gave his son
a firearm and told him to kill the mayor. The weapon was taken from
the child by force by a captain. Thereupon the applicant's father left
the village and returned to Çatak. He stayed there for nearly two
weeks. Whilst there, he went to the office of the prosecutor every day
to tell them that he had not left the town because he was under
surveillance.
The applicant's father received word from Major Murat (the
applicant does not know his surname), serving in the intelligence
service at Van Province Gendarme Headquarters, asking him to report to
the Regiment's Headquarters. On 20 October 1992, the applicant's
father went to the Headquarters, together with Musa (the applicant does
not know his surname), the mayor of Dalbasti village. A co-villager
by the name of Selim Kiyag and ten youths from Karabogaz village were
also there being interrogated. They report that the applicant's father
was tortured more intensively than they were.
On 25 October 1992, soldiers went to the applicant's village and
took his uncle, Ekrem Bilban, to Van Province Gendarme Headquarters and
handed over the body of the applicant's father to him. On
26 October 1992, the applicant applied to the office of the Public
Prosecutor in Van to discover the cause of his father's death. The
Public Prosecutor stated that he had taken samples of the blood of the
applicant's father and sent them to the Forensic Institute and that,
until he had received the results, the cause of death was not clear.
From then until now, the applicant has been unable to learn anything
about the cause of death.
The applicant states that his father had had no serious disease.
He believes that his father was killed under torture. When he applied
to the Van Province Gendarme Headquarters, he was told orally that his
father had died of a heart attack. The applicant did not see the body
of his father but relatives who saw it said that there were bruises on
various parts of his body and blood coming out of his mouth. The dead
man was buried in Çatak district cemetery. His family informed the
press but the security forces did not allow representatives of the
press to see his body.
The newspaper Özgür Gündem reported on 25 November 1992 that the
Van Doctors' Society and the Human Rights Association were
investigating the death. The Van Branch Secretary of the Human Rights
Association, Nazmi Gür, was reported as saying that "We have come to
the conclusion from the statements of eye-witnesses and villagers and
the burial certificate obtained that Saday died under torture". The
Turkish Doctors' Association asked the Van Branch of the Turkish
Doctors' Society and the Human Rights Association to investigate the
death.
The report of the Human Rights Association cites the applicant
as stating that the autopsy did not reflect the facts. Eye-witnesses
had seen the marks of torture on the mayor's body. His back was black
and blue and covered in bruises. The report contains the statement of
the villager who received the body. He was taken to Major Murat, who
told him that he was to collect a body. They took him to the body of
the mayor. All he had on were his pyjamas. The Prosecutor said to
him, "There are no wounds or bruises. Look well". The relative saw
that there was blood in the nose and mouth. The Prosecutor answered,
"This man was ill". The relative, who had known the mayor for many
years, said that he had no illness. He saw bruises on his back and
arms. The Prosecutor said to the taxi driver who was with the
relative, "Come and look too". The taxi driver said the same thing.
The Prosecutor then called two doctors. They "opened the chest" and
carried out the autopsy. They wrote a report and made the relative
sign it, even though he is illiterate. When he said to the Prosecutor
that the mayor had been killed as a result of torture, the Prosecutor
said to him, "Don't talk too much or I'll put you inside. Get out".
The relative believes that the intention behind the killing of the
mayor was either to force the remaining three hamlets in the village,
that did not accept "protection", to take arms or else to evacuate the
village. On the basis of the statements of a variety of people, the
Human Rights Association concluded that the applicant's father died as
a result of torture.
After the death of his father, most of the one hundred or so
households in the village, other than those of the "protectors", left
the village. The applicant's family left the village too. They now
live in the district of Cizre in Sirnak. The villagers report that
32 villages and hamlets in the area have been forcibly evacuated or
deserted as a result of the type of pressure to which they were
subjected.
The respondent Government state as follows.
Following the receipt of anonymous letters and complaints to the
effect that the applicant's father and others had been involved in the
terrorist attack on the Sugeldi village, the Çatak gendarmes on
16 October 1992 requested permission from the Çatak Public Prosecutor
to interrogate persons from the village who were suspected of being
supporters of the PKK. The Prosecutor granted permission on
19 October 1992 for a ten day period of interrogation in respect of
three persons including the applicant's father.
On 20 October 1992, the gendarmes sent the applicant's father to
Van Gendarme headquarters. Notice was sent from the headquarters to the
State of Emergency Headquarters that the applicant's father was held
in detention for interrogation. On the same day the applicant's father
was sent to Van state hospital for a medical examination. Dr. Sari
reported at 14.15 that there were no traces of bodily injury or
beatings.
On 24 October 1992, the applicant's father was taken to the
Headquarters doctor complaining of nausea. He was examined and treated
with medicine by the doctor who recommended that he be sent to the
state hospital.
On 25 October 1992, the applicant's father was admitted to the
military hospital emergency service. The report of Dr. Onat indicated
that his blood pressure was very low and his heart beat also very low.
He received a heart massage but did not revive.
The autopsy was conducted by a military doctor and a doctor from
the state hospital in the presence of a relative. The report referred
to blood accumulation in the mouth but found no traces of mistreatment
or torture. The cause of death reported to the Ministry of Justice by
the Van Public Prosecutor was "possible heart attack" or "cerebral
bleeding". The body was released for burial.
The investigation into the death of the applicant's father
commenced on 26 October 1992 on which date the Public Prosecutor signed
the applicant's complaint. A preliminary investigation file was opened
on 27 October 1992 the complainant being stated as the applicant and
the suspects as the personnel at the Van Gendarme Headquarters.
The Public Prosecutor summoned and questioned Major Murat Çakmak
and other personnel from the headquarters. They testified to the effect
that the applicant's father's health deteriorated on the Sunday when
the detainees were in a cell waiting for interrogation and that no
cases of torture were authorised.
Body parts extracted from the appplicant's father were examined
by the Forensic Medicine Directorate in Istanbul. The first report of
23 December 1992 was inconclusive, stating that the exact cause of
death had not been determined. The Director of Forensic Medicine
requested the Van Public Prosecutor for permission to re-open the grave
and to remove the the skullbones for further investigation into the
cause of death. Permission was granted and on 13 June 1993 the grave
was an exhumation of the applicant's father's body and body samples
sent for forensic examination.
In its report dated 21 July 1993, the Forensic Medicine
Directorate found the applicant's father could have died of bleeding
in the brain due to a bloodvessel disorder. It found no traumatic
traces.
The Prosecutor dismissed the investigation on 18 August 1993 with
a decision not to prosecute under Article 164 of the Code of Criminal
Procedure.
B. Relevant domestic law and practice
Criminal procedures
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).
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).
Where a court is satisfied that an appeal is well-founded, it
will order the opening of a public prosecution, which will be executed
by the Public Prosecutor pursuant to Article 168 para. 2 of the Code
of Criminal Procedure.
Civil action for damages
Pursuant to Article 41 of the Civil Code, an injured person may
file a claim for compensation against the alleged perpetrator:
"every person who causes damage to another in an unlawful manner,
be it wilfully or be it negligently or imprudently, is liable for
compensation."
Pursuant to Article 46, any victim of an assault may claim
material damages:
"The person who has been injured is entitled to compensation for
the expenses as well as for the losses resulting from total or
partial disability to work due regard being had to the detriment
inflicted on the economic future of the injured party."
Moral damages may also be claimed under Article 47:
"...the court may, taking into consideration the particular
circumstances, award adequate general damages to the injured..."
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 6, 13 and
14 of the Convention.
As to Article 2, he complains of the death of his father in
custody, in circumstances suggesting that he died under or as a result
of torture. Alternatively he complains of the killing of his father
in violation of the State's obligation to protect his right to life.
He also complains 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, he complains of the torture to which his father
was subjected and of the applicant's own inability to discover what had
happened to his father. He further complains of having been forced to
leave his home and livelihood, as a result of threats and intimidation
by the "protectors" and security forces and of discrimination on
grounds of race or ethnic origin.
As to Article 6, he complains of the failure to initiate
proceedings before an independent and impartial tribunal against those
responsible for the torture and killing, as a result of which he cannot
bring civil proceedings arising out of the killing. He is therefore
denied effective access to court.
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 discrimination on the grounds
of race and/or ethnic origin in the enjoyment of the rights under
Articles 2, 3, 6, 10 and 13 of the Convention.
As regards the exhaustion of domestic remedies, the applicant
states that he is not required to exhaust any such remedy, since they
are all illusory, inadequate and ineffective. He states that
(a) there is an administrative practice of non-respect of the
rule which requires the provision of effective domestic remedies
(Article 13);
(b) there is an administrative practice of torture in custody,
which not infrequently results in death, at the hands of the
Turkish Gendarmerie in South-East Turkey;
(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 pursue
alleged remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 August 1993 and registered
on 23 September 1993.
On 29 November 1993, the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 1 June
1994, after an extension of the time-limit fixed for that purpose which
expired on 11 April 1994. The applicant replied on 17 July 1994.
THE LAW
The applicant alleges that his father was tortured and killed in
circumstances for which the State is responsible. He invokes Article
2 (Art. 2) (the right to life), Article 3 (Art. 3) (prohibition on
inhuman and degrading treatment), Article 6 (Art. 6) (the right of
access to court), Article 13 (Art. 13) (the right to effective national
remedies for Convention breaches) and Article 14 (Art. 14) (prohibition
on discrimination).
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. They contend that the applicant had a number of
remedies at his disposal which he did not try.
The Government refer to the applicant's failure to appeal against
the Public Prosecutor's decision not to prosecute pursuant to Article
165 of the Code of Criminal Procedure. They also submit that he has not
pursued the remedy of damages pursuant to Articles 41, 46 and 47 of the
Turkish Civil Code.
The applicant maintains that there is no requirement that he
pursue domestic remedies. He refers to the widespread practice of
torture of persons in police and the existence of an administrative
practice of ineffective remedies. He makes reference in this regard to
the Public Statement of the European Commission for the Prevention of
Torture and Inhuman and Degrading Treatment or Punishment
(15 December 1992) and the 1993 and 1994 Reports of the United Nations
Special Rapporteur on Extra-judicial Summary or Arbitrary Executions
(E/CN.4/1993/46 and E/CN.41994/7). He contends that the investigation
into his father's death was inadequate given the lack of independence
and effectiveness of public prosecutors and states that to prove the
effectiveness of the alleged remedies, the Government would have to
point to more than the occasional prosecution and give examples of
convictions and compensation being obtained on a regular basis. He
refers also to the intimidation faced by lawyers who seek to pursue
such cases. It would, in the applicant's view, have been pointless to
appeal the Public Prosecutor's decision not to prosecute since in any
event the failure to institute proper independent investigation or to
initiate a prosecution discloses a violation of the Convention.
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. A mere doubt as to the prospect of success however
is not sufficient to exempt an applicant from submitting a complaint
to the competent court (see eg. No. 20357/92, Dec. 7.3.94, D.R. 76-A
p. 80). 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 notes that the acts of which the applicant
complains, the alleged torture of his father which resulted in his
death, are prohibited by the Turkish Criminal Code and that it is not
in dispute that if such acts took place, it would have been in
contravention of the criminal law to which the gendarmes are subject.
The Turkish legal system provides in such instances for investigation
to be carried out by the Public Prosecutor who takes the decision
whether or not to initiate a prosecution against the alleged
perpetrators. In the event, as in this case, a decision not to
prosecute is issued, there is the possibility under Article 165 of the
Code of Criminal Procedure of appealing to a court.
As regards the applicant's argument that he was not required to
pursue any remedies since there is an administrative practice in South-
East Turkey which makes any remedies illusory, inadequate and
ineffective, the Commission notes that the applicant did in fact pursue
a remedy by requesting the office of the Public Prosecutor to make an
investigation to establish the cause of his father's death. Moreover,
if there were no effective remedies, the applicant would have been
required under Article 26 (Art. 26) of the Convention to lodge his
application within six months from the date on which he learnt of his
father's death. He did not do this, and the Commission will therefore
proceed from the assumption that the application to the Public
Prosecutor was a relevant domestic remedy.
The Commission has had regard to the applicant's arguments as to
the insufficiency of the Public Prosecutor's investigation and as to
why he did not pursue an appeal. It recalls however that the Public
Prosecutor questioned the gendarmes, including Major Murat Çakmak, and
that the step was taken of exhuming the body of the applicant's father
and sending samples for further forensic examination. In these
circumstances, the Commission is not satisfied that there was any
suspicious omission in the investigation which could call into question
its genuineness or support the applicant's contention that the
investigation was a merely formal exercise. To the extent that the
Public Prosecutor's decision could be argued as not being justified by
the available evidence, it was open to the applicant to appeal to a
court which could on examination of the evidence, including witness
statements and medical reports, have directed that a prosecution or
other investigatory measures be carried out. The Commission cannot find
it established that such an appeal would have been devoid of any chance
of success.
Further, the applicant has not given any indication that he has
been subject to intimidation or referred to any specific facts
indicating that he would have risked reprisals or intimidation if he
had taken the step of appealing.
Consequently, the Commission finds that in the circumstances of
this case the applicant cannot be considered as having complied with
the exhaustion of domestic remedies rule laid down in Article 26
(Art. 26) of the Convention.
The application must therefore be rejected for non-exhaustion of
domestic remedies under Article 27 para. 3 (Art. 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)