Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22677/93

by Salih CETIN

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 25 August 1993 by

Salih CETIN against Turkey and registered on 28 September 1993 under

file No. 22677/93;

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, born in 1948

and living at Kulp Caglayan Derecik. 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, who is a farmer, had built his house two years ago

and had opened a grocer's shop in one corner of it. It was situated in

Derecik, a hamlet of the Caglayan village, Kulp.

The applicant claims that the following events occurred.

In or about the autumn of 1992, the mayor of his village was

given orders by a sergeant from the Kulp Central Gendarmes station to

evacuate the village. The mayor refused. He was told by the officer

that if he had not left with the inhabitants in two weeks, the village

would be burnt to the ground. The police, it appears, began to set

fire to a neighbouring village, Citik, and this caused panic among the

inhabitants of Derecik. There was a mass evacuation to other villages

and to the city of Diyarbakir. But those villagers, including the

applicant, who could not find residence or shelter elsewhere returned

to Derecik after two weeks.

On 4 March 1993, the State security forces opened fire on the

village. The applicant's house and shop, with their contents were

destroyed. This resulted from shells fired at the house setting it on

fire. A total of 18 out of 50-55 households in the village were

rendered completely uninhabitable. The applicant lost a tractor, 25-30

beehives and the goods in his grocer's shop. He estimates his loss at

300-350 million Turkish lira.

The remaining inhabitants, including the applicant, fled from the

village following the attack.

With the help of the Human Rights Association in Diyarbakir the

applicant has tried to obtain compensation but without success. He made

a petition to the State of Emergency Regional Governor but was referred

to the Provincial Governor and, finally, to the Kulp District Gendarmes

Commander HQ, which was the unit alleged to be responsible for the

burning incident.

The respondent Government state that Derecik is in an area

troubled by the activities of the PKK (Workers' Party of Kurdistan -

an armed separatist movement) and that the security forces routinely

are called upon to maintain order and to protect the lives and property

of ordinary citizens. In that context, the Government state that on 4

March 1993 the security forces attached to the Kulp gendarmerie carried

out a search in the area of the village with the purpose of arresting

any members of the PKK.

Following the commmunication of the application to the Government

in December 1993, the public prosecutor of Kulp has commenced an

investigation into the alleged incident.

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. These councils are made up of civil servants.

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 the destruction of his home,

possessions and livelihood by military action and about the failure of

the Turkish legal system to compensate him for that damage. He alleges

violations of Articles 3, 6, 8, 14 and 18 of the Convention and Article

1 of Protocol No. 1.

As to Article 3, the applicant complains of the deliberate

uprooting of a community of which he is a part, by threat and

destruction of his home, which in his opinion constitutes inhuman

treatment. He further submits that this treatment was directed at him

by reason of his race or ethnic origin as a Kurd. He also refers to

the Emergency Rule of Law Regulations as being incompatible with

Article 3.

As to Article 6, he complains of the absence of a fair and

impartial tribunal for the determination of his civil rights. He

states that he has in vain attempted to petition the authorities and

to obtain redress. Moreover, there has been no criminal investigation

of the acts at issue, including the destruction of property. No civil

claim is possible to pursue against the security forces, unless there

has been a successful criminal prosecution.

As to Article 8, he complains of the destruction of his home by

the actions of the security forces shelling and setting it on fire.

As to Article 14, he claims to be a victim of discrimination in

the enjoyment of his rights under Articles 3, 6 and 8 of the Convention

and Article 1 of Protocol No. 1, by reason of his being a Kurd.

As to Article 18, he considers that the restrictions on his

rights, including the destruction of his home and business stock and

possessions, have been imposed for purposes which are incompatible with

the Convention. He was removed from his village and his property and

possessions were destroyed because he and the other residents were

Kurdish civilians. The assumed objective was to frighten and

intimidate them from offering forms of support to the PKK and to deny

the PKK access to villages, these purposes being alien to the

Convention system.

As to Article 1 of Protocol No. 1, he complains that all his

property and possessions were destroyed deliberately by the security

forces. He states that the shelling of a residence cannot be in the

public interest and if it is not in violation of Turkish law, it is

incompatible with the Convention. The destruction of property involved

in this case is also in breach of the "general principles of

international law".

The applicant adds that the present case is an instance of a

systematic and arbitrary expulsion of people and the destruction of

their livelihood and habitat. He considers that there is an

administrative practice of violation in this regard of Articles 3, 6

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

As regards exhaustion of domestic remedies, the applicant refers

to existing emergency powers to evacuate, move or combine villages,

hamlets and similar centres of population either temporarily or

permanently. No procedure is provided for obtaining redress or

compensation in the case of forced evacuations. Nevertheless, the

applicant tried to petition the authorities, and his petition was in

the end referred to the unit responsible for the burning incident,

which shows that it is pointless to try to exhaust domestic remedies

or to apply to administrative offices.

Furthermore, he considers that any domestic remedies are

illusory, inadequate and ineffective. As to the reasons why he

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

presented in another application to the Commission (No. 21893/93,

Akduvar and others v. Turkey, Dec. 19.10.94).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 August 1993 and registered

on 28 September 1993.

On 29 November 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 23 March 1994

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

in reply were submitted on 15 June 1994.

THE LAW

The applicant alleges that on 4 March 1993 State security forces

launched a gun attack on his village. He claims that his house and shop

with their contents were destroyed and he and the other remaining

inhabitants forced to evacuate the village. The applicant invokes

Article 3 (Art. 3) of the Convention (the prohibition on inhuman and

degrading treatment), 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 14 (Art. 14) (the prohibition against

discrimination) and Article 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 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 states that he tried to obtain compensation and

that he made a petition to the State of Emergency Regional Governor

but was referred to the Provincial Governor and, finally, to the Kulp

District Gendarmes Commander HQ. He further 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. The Commission also has had regard to the

applicant's information that he tried to obtain compensation and lodged

a petition with the authorities, but without success. The present

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 present in

in the applicant's village on 4 March 1993 the operations conducted

aimed at searching for members of the PKK who were to be arrested. 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 and points out that

the Government have not in fact disputed that the applicant's home and

property were destroyed and the village set alight.

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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CETIN v. TURKEY

CETIN v. TURKEY

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