AS TO THE ADMISSIBILITY OF

                      Application No. 23954/94

                      by    1. Mehmet Emin AKDENIZ

                            2. Sabri TUTUS

                            3. Sabri AVAR

                            4. Keles SIMSEK

                            5. Seyithan ATALA

                            6. Aydin DEMIR

                            7. Kemal TAS

                            8. Suleyman YAMUK

                            9. Ramazan YERLIKAYA

                      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 5 April 1994 by

1. Mehmet Emin AKDENIZ, 2. Sabri TUTUS, 3. Sabri AVAR, 4. Keles SIMSEK,

5. Seyithan ATALA, 6. Aydin DEMIR, 7. Kemal TAS , 8. Suleyman YAMUK,

and 9. Ramazan YERLIKAYA, against Turkey and registered on 25 April

1994 under file No. 23954/94;

     Having regard to:

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

     the Commission;

-    the observations and information submitted by the respondent

     Government on 4 December 1994 and 25 January 1995 and the

     information and observations in reply submitted by the applicants

     on 13 February 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant, Mehmet Emin AKDENIZ, a Turkish citizen of

Kurdish origin, was born in 1938 and resides at Kulp. He complains to

the Commission on his own behalf and on behalf of his brother M. Salih

AKDENIZ, aged 70, who was mayor of Inkaya, and his nephew Celil

Aydodgu, aged 60.

     The second applicant, Sabri TUTUS, a Turkish citizen of Kurdish

origin, was born in 1976 and resides at Diyarbakir. He complains to the

Commission on his own behalf and on behalf of his father Behcet TUTUS,

aged 44.

     The third applicant, Sabri AVAR, a Turkish citizen of Kurdish

origin, was born in 1950 and resides at Mus. He complains to the

Commission on his own behalf and on behalf of his son M. Serif AVAR,

aged 24, and his brother Hasan AVAR, aged 42.

     The fourth applicant, Keles SIMSEK, a Turkish citizen of Kurdish

origin, was born in 1950 and resides at Mersin. He complains to the

Commission on his own behalf and on behalf of his brother Bahri SIMSEK,

aged 40.

     The fifth applicant, Seyithan ATALA, a Turkish citizen of Kurdish

origin, was born in 1970 and resides at Diyarbakir. He complains to the

Commission on his own behalf and on behalf of his brother M. Sah ATALA,

aged 24.

     The sixth applicant Aydin DEMIR, a Turkish citizen of Kurdish

origin, was born in 1968 and resides at Diyarbakir. He complains to the

Commission on his own behalf and on behalf of his brother Turan DEMIR,

aged 27.

     The seventh applicant, Kemal TAS, a Turkish citizen of Kurdish

origin, was born in 1939 and resides at Kulp. He complains to the

Commission on his own behalf and on behalf of his son Umit TAS, aged

16.     The eighth applicant, Suleyman YAMUK, a Turkish citizen of

Kurdish origin, was born in 1955 and resides at Mus. He complains to

the Commission on his own behalf and on behalf of his elder brother

Abdo YAMUK.

     The ninth applicant, Ramazan YERLIKAYA, a Turkish citizen of

Kurdish origin, was born in 1967 and resides at Mus. He complains to

the Commission on his own behalf and on behalf of his brother Nusreddin

YERLIKAYA.

     The above-mentioned eleven persons on whose behalf the

application is brought have all disappeared after they had been

arrested and detained in the circumstances described below.

     The applicants are represented before the Commission by Professor

Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex,

England.

     The facts as submitted by the parties may be summarised as

follows:

A.   The particular circumstances of the case

     The applicants give the following account of events.

     In October 1993, there was a military operation with 10.000-

15.000 soldiers and village guards in the Kulp-Mus-Bingöl triangle,

Diyarbakir province, South East Turkey, which centred on the village

of Alaca and surrounding hamlets. It is assumed that the military

operation was directed at the search for both members and supporters

of a PKK armed group. The operation included the destruction of the

village of Alaca and its hamlets as well as the expulsion of its

inhabitants, most of whom left for the city of Diyarbakir or the towns

of Kulp and Mus. Witnesses state that military planes were involved and

that bombs were dropped that killed livestock and started forest fires.

     From 9 October 1993, a number of male villagers, possibly fifty,

were arrested at different places and at different times and brought

to a temporary open air detention site outside Gundik hamlet, Alaca

village, Kulp district, Diyarbakir province. The eleven missing persons

at issue in the present case were among those brought there. Several

of the applicants or their relatives were also among those arrested and

brought to the site, or they visited the camp later. They can all

testify that the eleven persons now missing were held with their hands

tied behind their backs by rope throughout their detention at the site.

All the prisoners were interrogated continuously about their knowledge

of terrorists.

     After a period of about 10 days the bulk of those arrested were

released. The eleven missing men, whose ages ranged from 16 to 70, were

taken at different times by military helicopter from the temporary open

detention camp to an unknown destination on or about 19 October 1993.

The eleven missing persons have not been seen since.

     The applicants in their search for information about their

missing relatives have not received any explanation as to what happened

to them. Despite the efforts of the applicants since the disappearance

of their relatives nothing has been learned from the authorities about

the whereabouts of the missing men.

     The facts based on the statements of each of the applicants and

witnesses are as follows :

      The applicant Mehmet Emin Akdeniz was in Diyarbakir, while his

brother M. Salih Akdeniz and his nephew Celil Aydogdu were taken into

custody by soldiers who came to the Sen pastures for an operation. The

applicant went to Kulp when he learned of the incident. He did not go

to the village as he was afraid to be caught by the soldiers. When he

learned of the disappearance of his brother with ten other people after

they had been taken to an unknown place by helicopter, he went back to

Diyarbakir and he submitted a petition to the prosecuting authority

asking for his brother's whereabouts. The reply on 5 November 1993 was

that his brother was not in custody. On 12 November 1993, the applicant

applied to the chief prosecution at Bingöl but was informed that there

was nothing in the records. The applicant went to a friend who works

in Diyarbakir Gendarme Command and who is a close friend of a colonel,

and requested him to ask for his brother. As a result of the questions

his friend put to the colonel, they were informed that his brother was

not in the hands of the soldiers. On 24 November 1993, the applicant

went to Ankara and met the State Minister responsible for Human Rights,

who telephoned to the State Emergency Regional Governorship, gave the

names of the eleven people and asked about them. The answer of the

governor was that those people were not at any of the units connected

to him. Afterwards, the applicant submitted petitions to the State

Minister, the Prime Minister and the Minister of the Interior, from

whom no reply was received. After his return to Diyarbakir, he and the

relatives of the other missing men met the Assistant State of Emergency

Regional Governor and submitted a petition to him on 30 November 1993.

No reply to that petition has been received. On 14 December 1993, he

and another relative applied to the prosecution at the State Security

Court at Kayseri on behalf of four of the missing men without result.

     The applicant Sabri Tutus states that, on 9 October 1993, his

father Behcet Tutus was arrested together with his uncle Selahattin

Tutus. His father had 20.000.000 Turkish Liras cash on him when he was

arrested. His uncle was released after three days during which he had

been held in the detention camp in Alaca village. His father remained

in detention, and according to his uncle's statements, his father's

money and a bank book were taken by a First Lieutenant. His father was

taken to an unknown place after he had been held ten days in custody.

     The applicant Sabri Avar was informed about the operation, but

he was afraid to go to the village. He went there after ten days and

learned from the villagers that, on 9 October 1993, his brother and his

son had been taken into custody with some other people as a result of

the operation. They were held for about ten days in the village where

villagers brought them food. Eleven of them were taken to an unknown

place by helicopter. On 22 November 1993, he addressed a petition to

the chief prosecution at Kulp and on 27 December 1993, to the Kulp

Governorship, but without result.

     The applicant Keles Simsek, who has lived in Mersin for years,

was not in the village during the incident. After having had a phone

call from a relative from Mus informing him about the operation and the

burning of the village, he came to Kulp, where he learned that his

brother was in custody. When he went to the village five or six days

after his brother had been arrested, he saw that the village had been

burnt down. He learned that his brother was being held and got

permission to see him. The prisoners were being held in an open space,

and their hands were not bound while he was there. They said to the

applicant, "when someone comes to see us they untie our hands, and when

they go, they tie them up again". He was able to speak to his brother

for about three hours. His brother told him that when they were first

taken into custody in the village they were tortured. The applicant

applied to the State Security Chief Prosecution in Diyarbakir on

12 December 1993 and then was told that they had no information about

his brother.

     The applicant Seyithan Atala states that, on 9 October 1993, his

brother M. Sah Atala was taken into custody as a result of an operation

carried out in the region, in which about 15.000 soldiers took part.

Since the applicant was in Diyarbakir during the incident, he had the

information from the villagers who told him that his brother had been

taken to an unknown place at the end of the operation. While his

brother was in custody, his family brought him food and clothing and

talked to him. He applied to the Kulp State Prosecutor, to the District

Governor, to the Diyarbakir State Security Court Prosecution, all

without any result. The Kulp District Governor told him that the

operation had been directed by Brigadier General Yavuz Pasa, and the

orders had been given directly by the Chief of General Staff Dogan

Gures. He sent the applicant to a captain, a Gendarme Commander, who

told him that he did not know anything. The applicant believes that he

has used all the legal channels in Turkey.

     The applicant Aydin Demir was at Mus when, on 9 October 1993, his

elder brother Turan Demir was taken into custody and the whole village

was burnt. When he returned to the village after three days he learned

about the incident and he was informed that his family had brought food

and cigarettes to his brother during nine days when his brother had

been held in custody. On the ninth day, his mother had seen a

helicopter which took his brother and the other ten people away. He

states that he applied to the Kulp Gendarme Command, the Diyarbakir

State Security Court Chief Prosecutor, the Diyarbakir Governorship, the

State of Emergency Regional Governorship and Kayseri, Bolu and Bingöl

Gendarme Commands, but no information was received. Hüsnü Demir, father

of the applicant, made a written petition to the prosecution at the

Diyarbakir State Security Court concerning the disappearances on

17 December 1993 and was orally informed that no records had been

discovered to the effect that Turan Demir and the ten others were in

custody.

     The applicant Kemal Tas states that, some time before the

operation in Alaca village, his son Umit had gone to Kulp with 7

million Turkish liras to pay a tobacco loan, and that he was taken into

custody at Kulp by the police because of this money found on him. The

applicant's son Mehmet Tahir brought food to Umit when he was in

custody at Kulp. Once when Mehmet Tahir again went to give food to

Umit, he was told that Umit had been released. But he has not been seen

since. The applicant learned that the police had handed him over to

soldiers. During the operation, he was brought to Alaca village. The

applicant applied to the Security authorities and the District

Governor, but neither of them admitted that they held his brother in

custody.

     The applicant Suleyman Yamuk was in Mus at the time of the

incident. He came to the village five days after his brother had been

detained. The village was being set on fire at that time. The soldiers

arrested the applicant and took him by helicopter to Mus where he was

held in custody for seven days. After his release, he tried to find his

brother who had been arrested by the soldiers on 9 October 1993 and had

been held in the village for some time until he was taken to an unknown

destination by helicopter. He was unable to find any trace of his

brother. He applied on 21 October 1993 to the State prosecution at

Bingöl without result.

     The applicant Ramazan Yerlikaya and his brother Nusreddin were

arrested on the same day but in different places and at different

times. The applicant was taken to his village and was held there bound

by soldiers for nine days. From there he was taken to Mus Security

Directorate, where he was released after eight days. His other brothers

Abdulrahim and Medeni Yerlikaya and his relative Ali Yerlikaya were

taken into custody together with his brother Nusreddin in Alaca village

from where his brother Nusreddin was taken to an unknown place by

helicopter. Medeni and Ali were released with the others after nine

days.

     According to the witness statement of Ali Yerlikaya relating to

the eleven missing men, about 30 soldiers came to his house at 09.00

on the day of the incident. The soldiers searched the house and, then,

took him away. Later, they brought Bahri Simsek, M. Sah Atala and Umit

Tas to join him. On the second day, Nusreddin Yerlikaya, Hasan Avar and

Abdo Yamuk were also brought there. They were asked whether they had

seen any terrorists and whether they knew where they were. After they

had answered that they had not seen any, their hands were bound. On the

third day he and others were put in a helicopter which departed for

Gundik hamlet. There they were held in an open space with their hands

tied. On the following day, Abdo Yamuk was taken away from the others

to another place from where three shots were heard. Abdo Yamuk was

brought back to the others two days later. He had been shot in his

right foot which was bandaged. Afterwards, he was put in a helicopter

and taken to the forest around Kayalisu opposite the Gundik hamlet

where, one day earlier, Nusreddin Yerlikaya and Behcet Tutus had been

sent. The following day, Umit Tas was taken to the Sen pasture. Two

days later, Ali Yerlikaya was released. He was given his identity card

and told to return to his village, but not to stay there. The houses

and the possessions had been burnt.

     According to the witness statement of Abdurrahman Yerlikaya

relating to the eleven missing men, he was taken into custody during

the operation which was carried out in his region by about 15.000

soldiers. He was taken to Piric hamlet. After being held there for

three days, he was taken with his brothers Medeni and Nusreddin

Yerlikaya, Ali Yerlikaya, Bahri Simsek, M. Sah Atala, Umit Tas, Hasan

Avar and Abdo Yamuk to Gundik hamlet by helicopter. They were asked

whether or not they had seen the terrorists. They met Mehmet Salih

Akdeniz, Behcet Tutus, M. Serif Avar, Turan Demir and Celil Aydogdu,

who were held in an open space with their hands bound, at the place

where they were brought. Abdo Yamuk was taken away from the others,

afterwards three gunshots were heard, and two days later he was seen

with his right leg bandaged. First, Nusreddin Yerlikaya and Behcet

Tutus were taken by helicopter to the forested area near Kayalisu.

Later, Abdo Yamuk and on the following day Umit were taken there. Two

days later he, Ali and Medeni were given their identity cards and were

released and told to go back to their village but then to leave it

immediately.

     According to the witness statement of Selahattin Tutus relating

to the custody of Behcet Tutus, he and his brother Behcet Tutus were

coming back from Mus where they had gone to  get money for animals

which they had sold. They were stopped by ten soldiers at the entrance

of the village and arrested. They were brought to a place where there

were more soldiers together with two people in masks. These two people

and soldiers in uniforms pointed to Behcet after looking at their

identity cards. The soldiers tied the hands of Behcet Tutus under the

order of the First Sergeant, and started to beat him with sticks and

fists. In the meantime they were saying "show us where the terrorists

are". Behcet said that he did not know anybody. Behcet was beaten for

about two hours. They were held in the village with 49 people, of whom

eleven were bound like Behcet. The hands of the others were free.

During that night, the men whose hands were not bound were told to go

to the houses in the village but to come back the following morning.

Those whose hands were bound were kept in the open air. This continued

for two days, and the eleven men were fed out of the hands of the

soldiers. When the soldiers untied the hands of Behcet so as to permit

him to go to the toilet, he attempted to give the 20.000.000 Turkish

liras to Selahattin. A soldier saw the money and told the First

Sergeant about it. The First Sergeant took the money and put it into

his pocket. On the third day, 32 people, including the witness, were

brought out of Kulp to the Mus area by helicopter. They were held there

two days without having any food and water. Then they were released

except six of them who were released three days later. When they

arrived at their village, the village had been burnt.

     According to the witness statement of Mehmet Ilbey relating to

the eleven missing men, he was resident at Gurnik hamlet, Alaca

village, at the time of the incident. On 13 October 1993, there was an

identity check at the entrance of the village by the soldiers. The

soldiers took Mehmet Ilbey past a man with a cloth mask over his face.

The masked man, with his walkie-talkie, said, "Commander, I have not

seen this man". Then, he was taken to the place where about 50

villagers were held together. Eleven of them were M. Salih Akdeniz,

Celil Aydogdu, Behcet Tutus, Turan Demir, Hasan Avar, M. Serif Avar,

M. Sah Atala, Bahri Simsek, Abdo Yamuk, Nusreddin Yerlikaya and Umit

Tas. Their hands were tied, whereas the hands of the others were free.

On the third day, he was released but told to leave the area. He was

also told that they were going to burn the houses.

     The applicants appealed to Amnesty International through the

Human Rights Association. Amnesty international appealed to the Turkish

Government and, in April 1994, published a report about the missing

men.

     The respondent Government state as follows.

     No operation was carried out in the Kulp-Alaca region from

9 October 1993. The eleven persons alleged to be missing were not taken

into custody or detained. The inhabitants of the villages of Alaca and

inkaya have fled from their homes under the intimidation of the PKK.

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 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 subject

some-one 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).

     In general, in respect of 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.

     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 complaint of Mehmet Emin AKDENIZ concerns the disappearance

of his brother and nephew following their arrest by military forces in

the hamlet of Inkaya, Kulp district in Diyarbakir province on

9 October 1993 and their detention at Gundik hamlet, Alaca village, for

at least ten days and, afterwards, their transportation by military

helicopter to an unknown place.

     The complaint of Sabri TUTUS concerns the disappearance of his

father following his arrest at Alaca village on 9 October 1993 and his

detention at Gundik hamlet, Alaca village, for ten days and,

afterwards, his transportation by military helicopter along with

Nusrettin Yerlikaya to the forest around the village of Kayalisu, Mus.

     The complaint of Sabri AVAR concerns the disappearance of his son

and his brother following the arrest by security forces of both men in

Alaca village on 9 October 1993 and their detention for ten days at

Gundik hamlet, Alaca village, and, afterwards, their transportation to

an unknown place.

     The complaint of Keles SIMSEK concerns the disappearance of his

brother following his arrest by security forces in Alaca village, and,

afterwards, his transportation to an unknown place.

     The complaint of Seyithan ATALA concerns the disappearance of his

brother following his arrest by security forces on 9 October 1993 and

his detention for ten days and, afterwards, his transportation by

military helicopter to an unknown place.

     The complaint of Aydin DEMIR concerns the disappearance of his

brother following his arrest by security forces on 9 October 1993 and

his detention at Gundik hamlet, Alaca village, for ten days and,

afterwards, his transportation by military helicopter to an unknown

place.

     The complaint of Kemal TAS concerns the disappearance of his son

following his transfer from police to military custody on 9 October

1993 and his detention for ten days at Gundik hamlet, Alaca village,

from where Umit Tas, together with Ali Yerlikaya, was removed by a

First Lieutenant to the Sen pasture.

     The complaint of Suleyman YAMUK concerns the disappearance of his

brother following his arrest at Alaca village by security forces on 9

October 1993 and his detention at Gundik hamlet, Alaca village, for ten

days and, afterwards, his transportation by military helicopter to the

forested area surrounding the village of Kayalisu opposite the hamlet

of Gundik.

     The complaint of Ramazan YERLIKAYA concerns the disappearance of

his brother following his arrest by security forces on 9 October 1993

and his detention at Gundik hamlet, Alaca village, for ten days and,

afterwards, his transportation by military helicopter along with Behcet

Tutus to the forested area at Kayalisu.

     All of the applicants allege violations of Articles 2, 3, 5, 13

and 14 of the Convention.

     As to Article 2, the applicants submit that the circumstances of

the disappearances of the eleven missing persons may mean that they

have been killed arbitrarily in violation of Article 2 of the

Convention.

     As to Article 3, the applicants state that the missing persons

are the victims of torture by reason of their subjection to the

experience of arbitrary removal from their homes and families and the

suffering which that entails for each one of them. The applicants in

their own right are, it is submitted, also victims of violations of

Article 3 in that they have been deliberately subjected to continuous

suffering, anguish and pain arising from the disappearances of their

relatives and from the State's refusal to offer any explanation of

these disappearances.

     As to Article 5, the applicants, on behalf of the missing

persons, claim that their detention and their enforced disappearances

represent a direct violation of their right to liberty and security of

person.

     As to Article 13, the applicants state that there is a clear

breach of the duty to provide remedies under that Article, it being

impossible to discover what has happened to eleven detained citizens

six months after the time when they were last seen.

     As to Article 14, the applicants refer to an administrative

practice of discrimination on grounds of ethnic origin and complain of

violations of that Article in conjunction with Articles 2, 3 and 5.

     The applicants also refer to Article 1 of the Declaration on the

Protection of All Persons from Enforced Disappearance adopted by United

Nations General Assembly resolution 47/133 of 18 December 1992.

     As to the exhaustion of domestic remedies, the applicants submit

that no remedies are adequate and effective with respect to their

complaints because they have petitioned and appealed to the

authorities, civil and military, without any result.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 5 April 1994 and registered on

25 April 1994.

     On 27 June 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 4 December 1994

after one extension in the time-limit. The Government provided further

information on 25 January 1995. The applicants submitted observations

in reply on 13 February 1995.

THE LAW

     The applicants complain of the taking into custody, detention and

disappearances of 11 men (who are members of their respective

families). They invoke Article 2 (Art. 2) (the right to life), Article

3 (Art. 3) (prohibition on inhuman and degrading treatment), Article

5 (Art. 5) (right to liberty and security of person), 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 submit that the applicants have failed to comply

with the requirement under Article 26 (Art. 26) of the Convention to

exhaust domestic remedies before lodging an application with the

Commission.

     The Government contend that the applicants have not instituted

any legal proceedings. They refer to the possibility of administrative

action pursuant to Article 125 of the Constitution and to Law 2935 of

the State of Emergency and Decree 430. They state that the applicants

could have pursued a criminal complaint against the police or military

authorities pursuant to Articles 151, 152, 153 and 448 of the Code of

Criminal Procedure.

     The applicants submit that they have brought their complaints to

the attention of the authorities including the Public Prosecutor and

the State Security Court and that no action has been taken. In light

of the outright denial by the security forces that their relatives have

been taken into custody or removed, they submit that any further action

on their part would be futile. They refer to the negligible rate of

prosecution of members of the security forces for human rights abuses

in South-East Turkey.

     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 notes that in the present case the applicants have

made numerous approaches to the authorities, judicial, civil,

administrative and military, in relation to their missing relatives.

It notes in particular that Mehmet Akdeniz made a petition to the

Diyarbakir Public Prosecutor and to the Chief Prosecutor in Bingöl

about the disappearance of his brother; the relatives of all eleven

missing men presented their statements and a petition to the Assistant

State of Emergency Regional Governor whose office stated that they

would investigate; that Keles Simsek petitioned the Chief Public

Prosecutor of the Diyarbakir State Security Court on 12 December 1993

as did Aydin Demir and Seyithan Atala; that Sabri Avar petitioned the

chief prosecution at Kulp; that Suleyman Yamuk petitioned the state

prosecution at Bingöl; and that Mehmet Akdeniz and another relative

petitioned the Chief Prosecutor at the State Security Court at Kayseri

on behalf of four of the missing persons. The reply of the prosecution

at the State Security Court at Diyarbakir to the petition of Hüsnü

Demir indicated that it was known that eleven persons were claimed to

have been taken away.

     The Commission is satisfied that in the circumstances of this

case the applicants can be regarded as having brought their complaints

before relevant and competent authorities and that accordingly they are

not required under Article 26 (Art. 26) of the Convention to pursue any

other legal remedy in this regard (cf. Nos. 16311/90, 16312/90 and

16313/90; N.H., G.H. and R.A. v. Turkey, Dec. 11.10.91, unpublished and

No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75).

     The Commission concludes that the applicants may therefore 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 under Article 27 para. 3 (Art. 27-3).

     As regards the merits

     The Government deny that any operation was carried out in the

area from 9 October 1993 or that any of the eleven men were taken into

custody or detained. They submit that the allegations of the applicants

are vague, unsubstantiated and of dubious credibility. They further

submit that the villages of Alaca and Inkaya have been abandoned by the

villagers under the intimidation of the PKK.

     The applicants maintain their account of events, which they state

is supported by detailed statements of events and include, inter alia,

names and descriptions of members of the security services involved and

identifies the units and commanders.

     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)