Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22497/93

by izzet ASLAN

against Turkey

The European Commission of Human Rights sitting in private on

20 February 1995, the following members being present:

MM. C. A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYUK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

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 12 August 1993 by

izzet ASLAN against Turkey and registered on 20 August 1993 under file

No. 22497/93;

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

22 April 1994 and the observations in reply submitted by the

applicant on 27 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1947 and lives at Çinarönü Köyü/ Savur/Mardin. He 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 is bringing the application on his own behalf and on behalf of

of his son Özcan Aslan, his nephew Serif Aslan and his brother Ömer

Aslan.

The facts as submitted by the parties may be summarised as

follows.

A. The particular circumstances of the case

The applicant states that the following occurred:

On 13 February 1993 at about sunset, about 300 soldiers and

special teams (state security forces with the status of police), under

the command of non-commissioned officers and a first sergeant from

Çinar Gendarme Post and special team commissioners connected to Çinar

security police station, entered his village Çinarönü. They forced the

men of the village, including the applicant, his six nephews, his three

brothers in law and his three brothers, to gather in the village square

and to lie down in the snow, and to remain lying there all night until

about 6.00 or 7.00 the following morning.

Those forced to lie in the snow included the village imam. The

soldiers threatened to take off his socks, to burn his feet and set

fire to his beard, but the village mayor said:"Either you kill us all,

or you leave the imam alone".

As the men lay in the square, they were beaten by the soldiers

and special teams with truncheons, wooden beams and rifle butts. The

soldiers and special teams threatened the men, using words such as:"You

are assisting the terrorists, if we eliminate all of you, they can die

of hunger", and also abused the men, calling them "children of whores".

The women of the village including the applicant's wife, his

three sisters and his nieces, who witnessed what was done to the men,

were also subjected to abuse by the soldiers and special teams, who

used such words as: "We shall rape you all".

Soldiers collected the goods of the applicant's brother, Ömer

Aslan, into one room of his house, poured petrol over them, and set

fire to the house. As they did this, they beat him with rifle butts,

and used words such as:"We set fire to your house this time, if you

continue to assist the terrorists, we shall set you alight next time".

Ömer Aslan was also forced to lie in the square with the other men.

The soldiers and special teams left the village at about 7.00 on

14 February 1993 and split into groups.

At about 12.00 on 14 February 1993 a group of about 50 soldiers

encountered two boys, the applicant's son Özcan Aslan and his nephew

Serif Aslan, watching over sheep in the mountains about 1 or 2

kilometres outside the village. They stripped Özcan Aslan and Serif

Aslan completely naked in the snow, and insulted them. They wanted to

rape Özcan Aslan and, when he resisted, beat him severely. Özcan Aslan

suffered severe bruising and still suffers from chronic bronchitis as

a result of his experience. He was taken by the applicant to see a

doctor, but he had been appointed to another post and could not be

traced; it has not been possible to obtain a medical report.

The respondent Government state that on 13 February 1993 security

forces attached to the Gendarmes Command at Çinar carried out a search

at the applicant's village with the purpose of preventing activities

of the PKK (Kurdish Workers' Party: an armed separatist movement). The

operation was in the context of maintaining peace and protecting the

lives and property of ordinary citizens. Following the communication

of the application to the Government, the public prosecutor of Savur

has treated it as a "denunciation" and initiated a preliminary

investigation.

B. Relevant domestic law and practice

Criminal procedures

The Turkish Criminal Code makes it a criminal offence:

- to deprive someone unlawfully of his or her liberty (Article 179

generally, Article 181 in respect of civil servants),

- to oblige someone through force or threats to commit or not to

commit an act (Article 188),

- to issue threats (Article 191),

- to make an unlawful search of someone's home (Articles 193 and

194),

- to commit arson (Articles 369, 370, 371, 372), or aggravated

arson if human life is endangered (Article 382),

- to commit arson unintentionally by carelessness, negligence or

inexperience (Article 383), or

- to damage another's property intentionally (Article 526 et seq.).

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).

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).

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 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.

COMPLAINTS

The applicant complains of violations of Articles 3, 5, 6, 8, 13,

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

As to Article 3 he complains of torture and inhuman and degrading

treatment, including treatment amounting to collective punishment, of

the applicant and his relatives, including a son, brother and nephew.

As to Article 5 he refers to a breach of his right and that of

his relatives to the exercise of liberty and the enjoyment of security

of the person, by virtue of their being forced to spend a night lying

in the snow.

As to Article 6 he complains of the failure to initiate

proceedings before an independent and impartial tribunal against those

responsible for torture, inhuman and degrading treatment and

destruction of property, or to make effective provision for access to

the courts, as a result of which the applicant cannot bring civil

proceedings arising out of those events.

As to Article 8 the applicant refers to a violation of his right

to family life and respect for his home by reason of the collective

punishment applied to him, his relatives and the other villagers, and

by reason of the destruction of his brother's home.

As to Article 13 he alleges that there is a lack of any

independent authority before which his complaints can be brought with

any prospect of success.

As to Article 14 the applicant alleges that he and his relatives

have been discriminated against on the ground of their Kurdish origin

in the enjoyment of their rights under Articles 3, 5, 6, 8 and 13 of

the Convention and Article 1 of the First Protocol, and he refers to

an administrative practice of discrimination on grounds of race.

As to Article 18 he refers to the destruction of his brother's

home and property for purposes incompatible with the Convention.

As to Article 1 of Protocol No. 1 he again refers to the

destruction of his brother's home and property.

The applicant maintains that there is no requirement that he

pursue domestic remedies, on grounds which have been set out in another

application (No 21895/93). He adds that he believes, on good grounds,

that since the State perpetrated the incidents which he has described,

he would face persecution if he made a complaint to a State body.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 August 1994 and registered

on 20 August 1993.

On 11 October 1993, 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 22 April 1994

after two extensions in the time-limit. The applicant submitted

further information and observations in reply on 27 June 1994.

THE LAW

The applicant alleges that his son, brother, nephew and himself

were subject to torture by security forces who raided their village.

He invokes Article 3 (Art. 3) (prohibition on inhuman and degrading

treatment), Article 5 (right to liberty), 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 (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).

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 his disposal which he 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 administrative action before the administrative courts

for compensation in accordance with Article 125 of the Turkish

Constitution. Claims for compensation could also have been lodged in

the ordinary civil courts.

The Government submit also that the acts alleged by the applicant

have no lawful authority under emergency legislation or decrees and

would constitute punishable criminal offences under both criminal and

military law, in respect of which complaints could be lodged with the

competent civil and military authorities.

The Government further point out that there is an ongoing

investigation by the public prosecutor of Savur into the applicant's

allegations. Since the investigation has yet to be completed, the

Government submit that internal domestic remedies have not been

exhausted in this regard.

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 agents of the

State. He refers to an administrative practice 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; 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 ill-

treatment and torture or examples of compensation paid to villagers in

the situation of the applicant.

In respect of the investigation by the public prosecutor of

Savur, the applicant submits that it is not apparent what is being done

and that the investigation may have been initiated for appearances'

sake.

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 to deal

effectively with his complaints.

While the Government refer to the pending inquiry by the public

prosecutor into the applicant's complaints, the Commission notes that

more than a year has elapsed since it was initiated but that it is not

apparent that any significant progress has been made. In view of the

delays involved and the serious nature of the crimes alleged, the

Commission is not satisfied that this inquiry can be considered as

furnishing an effective remedy for the purposes of Article 26 (Art. 26)

of the Convention.

The Commission also notes its findings in previous cases (Akduvar

and others v. Turkey, No. 21893/93 and Cagirge v. Turkey, No. 21895/93,

Dec. 19.10.94) to the effect that it could not be said at this stage

that a fear of reprisal if complaints are pursued more vigorously is

wholly without foundation.

The Commission considers that in the circumstances of this case

the applicant is not required to pursue any other legal remedy in

addition to the public prosecutor's inquiry (see eg. No. 19092/91,

Yagiz v. Turkey, Dec. 11.10.93, to be published in D.R.75). The

Commission concludes that the applicant should be considered to have

complied with the domestic remedies rule laid down in Article 26

(Art. 26) of the Convention. Consequently, the application cannot be

rejected for non-exhaustion of domestic remedies under Article 27 para.

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

Abuse of the right of petition

The Government maintain that the application, being devoid of any

sound judicial basis, has been lodged for purposes of political

propaganda against the Turkish Government. Accordingly the application

constitutes an abuse of the right of petition which discredits the

legal nature of the Convention control mechanism.

The applicant rejects the Government's submission, contending

that his complaints relate to alleged violations of the Convention,

which have not formally been brought before the local instances for

fear of reprisals.

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 have made no comment on the merits beyond stating

that the security forces on 13 February 1993 carried out an operation

in the applicant's village to prevent activities by the PKK and to

safeguard the peace, security and the lives and possessions of ordinary

citizens.

The applicant maintains his account of events.

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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ASLAN v. TURKEY

ASLAN v. TURKEY