Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23180/94

by Mizgin OVAT

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 20 December 1993

by Mizgin OVAT against Turkey and registered on 7 January 1994 under

file No. 23180/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 December 1994 and the observations in reply submitted by the

applicant on 13 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

1973 and resident at Diyarbakir. She is represented before the

Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of

the University of Essex, England.

The facts of the present case as submitted by the parties may be

summarised as follows.

A. Particular circumstances of the case

The applicant states that the following occurred.

Early in the morning of 24 June 1993, 500-600 soldiers connected

to Lice and Diyarbakir Gendarme Stations performed a raid on the 200

household village of Pecar in Lice district, Diyarbakir province. The

raid was in apparent response to an armed attack which had been carried

out the day before by PKK guerillas on Ãœcdamlar Gendarme Station in

Ãœcdamlar hamlet in Pecar village.

When the soldiers came to the village on 24 June - some on foot

and some in armoured cars - they first set fire to a lorry owned by a

villager. At about 08.00, they blockaded the whole village. They

ejected the applicant and her family from their house. They poured

petrol over the house and set fire to it. They fired indiscriminately

right and left. The soldiers ill-treated the men in the village. They

collected the whole village, i.e. women, girls, children etc., next to

the water channel which runs through the centre of the village and

started to burn down the houses. Women and children started to cry and

were threatened by the soldiers. They threw themselves into the water

channel from fear and waited there for hours.

The applicant's family consists of seven persons (father, mother,

one sister, three brothers and the applicant herself). Their house was

burned down on 25 June 1993. After the house had been burned down, the

applicant and her family were told by the soldiers to leave the

village. They fled to another village and from there to Lice. They

now live in Diyarbakir. They were able to save two cows from their

animals, whereas one goat and nearly twenty chickens of theirs were

slaughtered and eaten by the soldiers.

The respondent Government state as follows.

No armed clash took place between the security forces and the PKK

on 23-24 June 1993 and no attack was launched by the PKK on the

gendarmerie station in Ãœcdamlar on 23 June 1993. What occurred was

this. On 24 June 1993 at about 09.00 a team of gendarmes climbing the

hill known as Gildiris, were ambushed by the PKK and one gendarme was

killed. The PKK fled when armoured vehicles went to the assistance of

the gendarmes. After a search, one of the terrorists was found dead.

The Government further state that they have been informed by the

mayor of the village of Güldiken that Mizgin Ovat is currently wanted

for evading military service which would indicate that he is a man, not

a woman as stated in the application.

The Government submit that the authorities report that a number

of villages in this area have been deserted as a result of intimidation

by terrorists and of the impact on conditions of life by terrorist

activity, which, for example, obstructs public works and public

utilities.

COMPLAINTS

The applicant complains of violations of Articles 3, 6, 8, 13,

14 and 18 of the Convention and Article 1 of Protocol No. 1.

As to Article 3, she submits that the subjection of herself, her

mother, sister and father to threats of being killed, their witnessing

of the deliberate destruction by fire of their home and possessions,

the experience of seeking refuge in the water channel and their forced

flight amount to a form of collective punishment and to inhuman and

degrading treatment.

As to Article 6, she complains of the absence of any procedure

by which she may pursue a claim for compensation before an independent

and impartial tribunal.

As to Article 8, she submits that the deliberate destruction of

home and possessions constitutes an interference with the right to

respect for home and private and family life, for which there is no

justification under paragraph 2 of Article 8.

As to Article 13, she complains of the absence of any effective

remedy and refers to the arguments presented in application

No. 21895/93, Cagirga v. Turkey.

As to Article 14, she considers that she and her family have been

subjected to discrimination on grounds of race or ethnic origin in the

enjoyment of their rights under Articles 3, 6, 8 and 13 of the

Convention and Article 1 of Protocol No. 1, since the violations of

their rights occurred because of their Kurdish origin.

As to Article 18, she submits that the destruction of her home

and family life, her possessions and livestock, and the forced

expulsion of her and her family from the Pecar village occurred for

purposes which are alien to the Convention (intimidation of villagers

in order to prevent them from offering support to the PKK).

As to Article 1 of Protocol No. 1, she complains of the

deliberate setting fire to the family home and possessions and the

destruction of livestock.

As to the exhaustion of domestic remedies, the applicant

considers that she is released from any obligation to pursue a domestic

remedy under Article 26 of the Convention because no remedy in the

circumstances could possibly prove adequate or effective.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and

registered on 7 January 1994.

On 9 May 1994 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 8 August 1994. At

the Government's request, this time-limit was subsequently extended

until 30 September 1994.

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

the Government that their request for a further extension had been

refused by the President of the Commission on the ground that five

months had elapsed since the application had been communicated. It was

added that the application would be considered by the Commission at its

session commencing on 9 January 1995.

Observations were submitted by the Turkish Government on

5 December 1994. Observations in reply were submitted on behalf of the

applicant on 13 February 1995.

THE LAW

The applicant complains of violations of Article 3 (Art. 3)

(prohibition on inhuman and degrading treatment), Article 6 (Art. 6)

(the right of access to court), Article 8 (Art. 8) (respect for family

life and home), Article 13 (Art. 13) (the right to effective national

remedies for Convention breaches), Article 14 (Art. 14) (prohibition

on discrimination) and Article 18 (Art. 18) (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), in respect of the raid in the course of which her home and

possessions were destroyed.

The Government argue that the application is inadmissible for the

following reasons:

i. the applicant failed to exhaust domestic remedies;

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

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 her disposal which she did not try.

In respect of damage alleged to have been caused by the State,

the Government submit that the applicant had the possibility of

introducing an action for compensation before the administrative

courts. They refer to the material submitted to the Commission in the

applications of Akduvar and others v. Turkey (No. 21893/93, Dec.

19.10.94) and Çagirga v. Turkey (No. 21895/93, Dec. 19.10.94) which

indicates in their view that the administrative courts issue judgments

on the basis of "absolute" or objective liability of the administration

or on the basis of faults or negligence of administrative agents. They

submit that there is no basis for the applicant's assertion that there

is no procedure for victims to pursue compensation and submit that the

courts interpret the emergency provision (Art. 7 of decree no.285 as

amended by decree no. 425 on 9 May 1990) as barring actions against the

Governor of the emergency region only insofar as they seek the

annulment of acts performed under the decree concerned.

The applicant maintains that there is no requirement that she

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. 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.

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 she had at her disposal adequate remedies to deal

effectively with her complaints.

The Commission refers to its findings in Application No.

21893/93, Akduvar and others v. Turkey (Dec. 19.10.94) which concerned

similar allegations by the applicants of destruction of their village

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. This application cannot, therefore, be rejected

for non-exhaustion of domestic remedies under Articles 26 and 27 para.

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

Abuse of the right of petition

The Government maintain that the application, which is defamatory

and composed of hollow calumnies, abuses the right of individual

petition.

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.

As regards the merits

The Government state that no armed clash took place between the

security forces and the PKK in the village of Pecar on 23-24 June 1993

and that no attack occurred on 23 June 1993 on the gendarmerie station

in Üçdamlar hamlet. They refer instead to an ambush on a team of

gendarmes by the PKK which occurred on 24 June 1993 on the hill"

Gildiris" in the course of which one gendarme and one terrorist were

killed. They cast doubt on the authenticity of the application in that

the mayor of the village Güldiken referred to Mizgin "Ivat" as being

wanted by the authorities for evading military service, which would

indicate that he is a young man not, as stated in this application, a

woman.

The Government reject as defamatory the allegation that the

security forces carried out an attack on the village. They state that

the authorities report that in this area a number of villages have been

deserted because of the intimidation from terrorists and the worsening

standards of living resulting from terrorist activities which obstruct

public works and utilities.

The applicant maintains her account of the attack by security

forces on the village and refers to statements made by the applicants

in other applications concerning the same incident (eg. Dündar v.

Turkey, No. 23182/94, Dec. 28.11.94). With regard to the alleged doubt

as to her identity, she contests that she is a male and offers to

clarify any confusion by submitting further confirmation.

The applicant further refutes the Government's claim that

villages are being voluntarily deserted. She claims that the forced

evacuation of villages has been well-documented by human rights

organisations eg. Helsinki Watch report October 1994, Vol. 6, no. 12

"Forced Displacement of ethnic Kurds from southeastern Turkey."

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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OVAT v. TURKEY

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