Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22275/93

by ismet GÜNDEM

against Turkey

The European Commission of Human Rights sitting in private on

9 January 1995, the following members being present:

MM. H. DANELIUS, Acting President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

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. M. DE SALVIA, Deputy 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 7 July 1993 by

ismet GÃœNDEM against Turkey and registered on 19 July 1993 under file

No. 22275/93;

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

10 March 1994 and the observations in reply submitted by the

applicant on 4 May 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

1955 and lives at Diyarbakir. He is represented before the Commission

by Professor Kevin Boyle and Ms. Françoise Hampson, both university

teachers at the University of Essex.

The facts as submitted by the parties may be summarised as

follows.

A. The particular circumstances of the case

The applicant claims that the following events occurred.

On 7 January 1993, at about 10.30h, the Turkish security forces,

consisting of approximately 200 soldiers and 150 village protectors

carried out the first of two raids, involving violence against property

and persons in the hamlet of Kaniya Meheme, which is situated in

Sarierik village near Diyarbakir.

The applicant was present in the village during the attack on

7 January 1993. The village had 15 households in 14 of which were

members of his extended family. During the raid, the security forces

gathered the villagers in one place. They beat some of the villagers,

verbally abused and swore at others, including children. They used

heavy weapons to shoot at the houses. They broke down doors and windows

and they "mixed up" all the winter provisions, so that they became

inedible. They also destroyed household goods in a number of houses.

Before they left, they stated that if they found the villagers there

the second time they came they would burn the village.

On 13 February 1993, the security forces and village protectors

returned to the village at about 05.00h. The forces attacked the

village, firing their guns into the air. The soldiers did not enter the

village but surrounded it. About 50 village protectors entered the

village and fired at the houses for about 20 minutes. Women and

children were taken from the houses which were then destroyed. Some of

the women and children were beaten with fists and rifle butts. Threats

were made that if the villagers did not leave the village within 24

hours, the village would be demolished.

Most of the houses were damaged and rendered unusable. The

applicant's house was damaged with the doors and windows broken and

everything inside destroyed.

In these circumstances, the applicant and the other villagers

fled to Diyarbakir.

It is claimed by the applicant that over 1000 villages have been

evacuated in a similar way and that many villages have been destroyed

since 1990. Over 1 million people have been displaced without

alternative accommodation or livelihood and without compensation.

The respondent Government acknowledge that Turkish security

forces were in operation in the village of Sarierik near Diyarbakir

between 7 and 13 February 1993. They state that the operations

conducted at that time were aimed at impeding the activities of the

militants from the PKK (Workers' Party of Kurdistan - an armed

separatist movement), maintaining order and protecting the villagers

and their property.

The applicant did not make any complaint to the authorities

concerning the destruction of his home and property and the expulsion

from the village, alleging a fear of reprisal. Following however the

communication of the applicant's complaints to the Government by the

the Commission in October 1993, the public prosecutor of Hasro

commenced an investigation into the events in question.

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 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. 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 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.).

For all these 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 applicant complains of violations of Articles 3, 5, 6, 8, 13

and 18 of the Convention and Article 1 of the First Protocol.

He states that, for fear of reprisals, he has been unable to seek

to challenge or complain to the authorities about the measures taken

against him. Furthermore, he considers that any domestic remedies are

illusory, inadequate and ineffective.

As to the precise nature of his complaints and the reasons why

he considers that there are no effective remedies, he refers to

arguments presented in two other applications to the Commission (Nos.

21893/93 and 21895/93).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 July 1993 and registered on

19 July 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 10 March 1994

after one extension in the time-limit and the applicant's observations

in reply were submitted on 4 May 1994. The applicant submitted further

information on 14 September 1994.

THE LAW

The applicant alleges that on 7 January 1993 and 13 February 1993

State security forces launched a gun attack on his village. He claims

that the soldiers and village protectors shot at the villagers, damaged

their homes, destroying the contents, and forced them to evacuate the

village. The applicant invokes Article 3 (Art. 3) of the Convention

(the prohibition on inhuman and degrading treatment), Article 5

(Art. 5) (the right to liberty and security of person), Article 6

(Art. 6) (the right of access to court), Article 8 (Art. 8) (the right

to respect for family life and the home), Article 13 (Art. 13) (the

right to effective national remedies for Convention breaches) and

Article 18 (Art. 18) (the 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 submit that the applicant has 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. 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 also 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 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 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; 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 he had at his disposal adequate remedies under

the state of emergency to deal effectively with his 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 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, being devoid of any

sound judicial basis, has been lodged for the 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 reprisal.

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 submit that, while security forces were in

operation in the village between 7 and 13 February 1993, the operations

conducted at that time were aimed at impeding the activities of the

militants from the PKK, maintaining order and protecting the villagers

and their property. The Government have not otherwise commented on the

substance of the applicant's complaints which it states are now under

investigation by the public prosecutor following the communication by

the Commission of the application.

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.

Deputy Secretary to the Commission Acting President of the Commission

(M. DE SALVIA) (H. DANELIUS)

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GÜNDEM v. TURKEY

GÜNDEM v. TURKEY