Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23818/94

by Muharrem ERGI

against Turkey

The European Commission of Human Rights sitting in private on

2 March 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 29 March 1994 by

Muharrem ERGI against Turkey and registered on 7 April 1994 under file

No. 23818/94;

Having regard to :

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

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

1954 and lives at Incirliova, Aydin. She is represented before the

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

the University of Essex, England. She complains to the Commission on

behalf of her deceased sister, Havva Ergi, aged 22, and her sister's

two year old daughter.

The facts as submitted by the applicant may be summarised as

follows.

On 29 September 1993, at around 21.00, State security forces and

village guards from Ziyaret village surrounded the applicant's village

Gisgis in Ergani District, Diyarbakir Province, South East Turkey. A

week earlier, one of the two persons in the village who worked for the

State had been killed by the PKK. The other person who worked for the

State had moved from the applicant's village to Ziyaret village (a

protectors' village), which is five kilometres away, under the

protection of the Ziyaret village guards one day before the incident.

On the day of the incident, the soldiers were located on the southern

side of the village. The village guards were located on the northern

side of the village. First, one or two shots were fired from the

northern side, then, there were volleys of firing at the village from

the southern side. The shooting lasted for about one hour and consisted

of the indiscriminate bombardment of civilian houses. It led to the

loss of the life of the applicant's sister, Havva.

The applicant's house was in the middle of the village. At the

time of the incident, her father and her deceased sister were sleeping

on the balcony, on the upper part of the house. As soon as the firing

started, her sister and her father came inside the house for shelter,

but her sister went out on the veranda to collect something. She was

hit in her head by a bullet when she was on the threshold and died

immediately.

On the following morning, the applicant, with her uncle, went to

Ergani Gendarme Commander and informed him about the incident in their

village during which her sister had been killed. The Commander was

surprised to learn that only one person had died and stated that at

least twenty people should have died. The applicant's uncle told the

Commander that he would apply to the Public Prosecutor. But the

Commander told them to go back home and said that he would himself

inform the Public Prosecutor.

Towards noon, the Public Prosecutor, a doctor and some soldiers

came to the applicant's house and an autopsy was carried out. The

finding was that a bullet had entered her sister's brain. While the

autopsy was being undertaken inside the applicant's house, the

villagers asked the soldiers why they were suffering such persecution.

The answer of a non-commissioned officer was that, if the villagers

accepted to become village guards, the persecution would stop and the

reason why they shot at the village was that they saw terrorists at its

entrance and that the indiscriminate firing at the entire village was

to be explained by the clumsiness of the troops. The doctor, after

completing the autopsy, said nothing except presenting condolences. He

also issued a burial certificate. The applicant and her family were not

asked by the Public Prosecutor about their version of the circumstances

of the shooting.

There has been no communication between the Public Prosecutor and

the family since the day of the autopsy. She and her family remain in

the dark as to the official view of the incident and do not know

whether there has been any investigation or prosecution in regard to

the shooting. She states that the village of 200 households has now

been reduced to 20 families, the rest having abandoned their homes as

a result of military incidents such as that which led to her sister's

death.

The Government have supplied the following information.

A preliminary investigation into the death of the applicant's

sister was commenced by the Public Prosecutor of the Ergani district.

On 12 December 1993, the Public Prosecutor, considering that the matter

fell outside his competence, transferred the file to the competent

public prosecutor attached to the Diyarbakir State Security Court where

the matter is still pending.

COMPLAINTS

The applicant complains of violations of Articles 2, 8, 14 and

18 of the Convention.

As to Article 2 she complains of the unlawful killing of her

sister by soldiers which cannot be considered to have occurred as the

result of the use of lethal force that was absolutely necessary for any

of the purposes specified in paragraph 2 of Article 2.

As to Article 8 the applicant submits that the killing of her

sister on the veranda of her home constitutes a direct interference

with her family life and, in particular, deprives her sister's two year

old child of her family life.

As to Article 14 she complains of discrimination on the grounds

of race and/or ethnic origin in the enjoyment of rights guaranteed by

Articles 2 and 8 of the Convention.

As to Article 18 she submits that the interferences in the

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

permitted under the Convention.

The applicant relies on the arguments advanced in this regard in

Application No 21893/93 Akduvar and others v. Turkey.

As to the exhaustion of domestic remedies, the applicant submits

that neither herself nor the family members were interviewed and no

actual inquiries have been instituted by the Public Prosecutor about

the circumstances of the killing. She maintains that she is not

required to pursue domestic remedies. In her opinion, any alleged

remedy is illusory, inadequate and ineffective because:

(a) the military assault on the village was officially

organised, planned and executed by agents of the State;

(b) there is an administrative practice of not respecting the

rule in Article 13 of the Convention which requires the provision of

effective domestic remedies;

(c) whether or not there is an administrative practice, domestic

remedies are ineffective in her case owing to the failure of the legal

system to provide redress. Specifically, the applicant refers to the

rule that no proceedings for compensation can succeed until there has

been a prosecution brought by the authorities against the perpetrator

of the unlawful attack.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 March 1994 and registered

on 7 April 1994.

On 27 June 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 4 November 1994.

By letter of 4 November 1994, the Government requested that the

case be adjourned pending the investigation before the public

prosecutor attached to the Diyarbakir State Security Court.

On 3 December 1994, the Commission refused the requested

adjournment and requested the Government to submit their observations

before 23 January 1995.

By letter date 21 February 1995, the Commission's Secretary

pointed out to the Government that the period for the submission of the

Government's observations had expired long ago and that no extension

of that time-limit had been requested. It was added that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its February session.

No observations have been submitted by the Turkish Government.

THE LAW

The applicant complains of violations of Articles 2, 8, 14 and 18

(Art. 2, 8, 14, 18) of the Convention in connection with the killing

of her sister. These provisions of the Convention respectively ensure

the right to life, the right to respect for private and family life and

the home, the securement of Convention rights without discrimination

and the application of permitted restrictions for prescribed Convention

purposes.

The Government, who have been informed that the application was

considered for inclusion in the agenda of the Commission at its present

session, have submitted no observations on the admissibility and merits

of the application.

It is the normal practice of the Commission, where a case has

been communicated to the respondent Government, not to declare the

application inadmissible for failure to exhaust domestic remedies,

pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the

Convention, unless this matter has been raised by the Government in

their observations. The Commission considers that the same principle

should be applied where, as in the present case, the respondent

Government have not submitted any observations at all.

It follows that the application cannot be rejected on the ground

that the domestic remedies have not been exhausted.

Moreover, the Commission is of the opinion that the application

raises important questions of fact and law which cannot be resolved at

the stage of the admissibility but require an examination on the

merits. The application cannot therefore be considered manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for declaring it inadmissible has 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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ERGİ v. TURKEY

ERGİ v. TURKEY

LEXI