DECISION

AS TO THE ADMISSIBILITY OF

Application No. 23186/94

by 1. Azize MENTEÅž

2. Mahile TURHALLI

3. Sulhiye TURHALLI

4. Sariye UVAT

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. ŠVÁBY

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 20 December 1993 by 1. Azize MENTEÅž, 2. Mahile TURHALLI, 3. Sulhiye TURHALLI and 4. Sariye UVAT against Turkey and registered on 11 January 1994 under file No. 23186/94;

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 8 September 1994 and the observations in reply submitted by the applicants on 2 November 1994;             

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Turkish citizens of Kurdish origin, are four women from the village of Riz in the Genç district, the province of Bingöl . They were born in 1970, 1948, 1945 and 1961 respectively. They and their families now live in Diyarbakĸr city.

They are 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 applicants state that the following events occurred.

On 25 June 1993, in the early morning some time after 6.00, about 500 soldiers blocked off the village and surrounding area. A large number of helicopters landed and soldiers from these began searching the village and the houses. The forces involved included the gendarmes and special forces from the Kidyat and Mardin Gendarme stations.

The soldiers searched the village but they found nothing. They rounded up all the old men and took them to an open space near the school building. They were made to lie face down in the sun from 7.00 to 12.00. According to several persons, the soldiers swore and assaulted the old people throughout these hours. Meanwhile the women and children were held together in the inner part of the village.

The soldiers systematically set fire to the houses, neighbourhood by neighbourhood , in sight of the women and children. They would not let them remove any possessions from the houses.

The second applicant, Mahile Turhall ĸ, reports the soldiers' explanation for the destruction of the village as follows: "...they said you assist terrorists, shelter them in your homes and give them food. This is the reason why we are burning down all your homes".

The raid ended after 16.00 with the helicopters ferrying soldiers into the mountains. As the soldiers had incinerated the village bus, some of the women and the children of the village left on foot. The applicant Mahile Turhalli walked first ten hours to the Diyarbakĸr road and then hitch-hiked to Diyarbakĸr . The fourth applicant, Sariye Uvat , set out with other villagers in the middle of the night before the soldiers had descended on the village. She walked with the group six hours to the Sarimcavi road, which was chosen to avoid the military. The others stayed on in the village a few days, sheltering in some houses that had not been burned down. All of the applicants finally arrived in Diyarbakĸr .

All the applicants stay in Diyarbakĸr with relatives or in overcrowded accommodation. They are without money for basic necessities including food and rent and they have no employment. The fourth applicant Sariye Uvat lost her two prematurely born twins after they had lived for ten days because she could not afford to be admitted to hospital.

The respondent Government state that since 1983 the PKK (the Kurdish Workers' Party - an armed separatist organisation ) has sought to use the applicant's village as a place of shelter and supply base. The villagers under the incursions of the terrorists were forced to leave the village. The terrorists used the houses from time to time and when the security forces took action against them, the terrorists fled setting the houses on fire.

The Government state that there were no operations by the security forces in the area on 25 June 1993 and that indeed the villagers had been absent from the village for 6-7 years by that point. They submit that the applicants are the close relatives of six named individuals who are suspected of being members of the mountains branch of the PKK.

On 25 April 1994, the public prosecutor of Genç issued his decision that there was no ground to prosecute the security forces in relation to the applicants' allegations. The decision was based on four statements from persons taken on 21 April 1994 and concluded that there was no operation on the day of the incident, though clashes had taken place in the area from time to time in respect of nearby PKK camps and that the villagers had evacuated as a result of persecution by the terrorists.

On 30 May 1994, another public prosecutor issued a decision that there was no ground to proceed in respect of the complaints, referring to the previous decision above and with further statements taken from three persons on 27 May 1994. He found that the villagers had left the village 6-7 years previously due to the threats of the terrorists, that the houses had been destroyed by terrorists fleeing from security forces and that the applicants were close relatives of PKK militants in the mountains.

COMPLAINTS

The applicants allege violations of Articles 3, 5, 6, 8, and 13 of the Convention, combined with Article 14. In addition, they allege that the respondent Government is in violation of Article 18 of the Convention.

The applicants invoke the submissions in application No. 21893/93, Akduvar v. Turkey (communicated to the respondent Government on 30 August 1993) both as regards the substance of their complaints and as to the question of exhaustion of domestic remedies.

The fourth applicant, Sariye Uvat , submits on behalf of her two premature twins, who died ten days after their birth, that they were victims of a violation of Article 2 of the Convention. Mrs Uvat was in her ninth month of pregnancy when she set out to walk to safety with the rest of her neighbours . As a result of the forced walk she gave birth prematurely to two twin boys after reaching Diyarbakĸr . The twin boys died through neglect and lack of medical attention. She should have been admitted to hospital but could not afford hospital care.

The applicants state that they have not complained to the relevant authorities since it was those same authorities who ordered the destruction of their homes and village and violated their rights.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and registered on 11 January 1994.

On 5 April 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 questions put to the Government included a question as to whether Article 1 of Protocol No. 1 to the Convention had been violated.

The Government's observations were submitted on 8 September 1994 after the expiry of the time-limit and the applicant's observations in reply were submitted on 2 November 1994.

THE LAW

The applicants allege that on 25 June 1993 State security forces launched a raid on their village, destroying their houses and possessions and forcing them to evacuate the village. The applicants invoke Article 3 of the Convention (the prohibition on inhuman and degrading treatment), Article 5 (the right to liberty and security of person),  Article 6 (the right of access to court), Article 8 (the right to respect for family life and the home), Article 13 (the right to effective national remedies for Convention breaches) and Article 18 (the prohibition on using authorised Convention restrictions for ulterior purposes). The fourth applicant, Sariye Uvat invokes Article 2 (the right to life) in respect of the death of the twins who were born prematurely after the raid.

Exhaustion of domestic remedies

The Government submit that the applicants have failed to comply with the requirement under Article 26 of the Convention to exhaust domestic remedies before lodging an application with the Commission.  They contend that the applicants failed to make complaint to the competent authorities. While they do not specify which remedies the applicants should have pursued, the Commission has had regard to the Government's submissions in the case of Akduvar and others v. Turkey (No. 21983/93, Dec. 19.10.94) in which it was stated that claims for compensation could be introduced before the administrative and civil courts and that complaints concerning the alleged criminal offences could have been lodged with the competent civil and military authorities.

The applicants maintain that there is no requirement that they 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 applicants' 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 applicants submit 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 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 applicants, because it agrees with the applicants that it has not been established that they had at their disposal adequate remedies under the state of emergency to deal effectively with their 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 further notes that the competent public prosecutors have subsequently found that there was no ground for prosecution in this case. This application cannot, therefore, be rejected for non-exhaustion of domestic remedies under Articles 26 and 27 para. 3 of the Convention.

As regards the merits

The Government submit that the security forces were not in operation in the village on the date alleged by the applicants and that in fact they and other villagers had been absent from the village for 6-7 years driven out by the persecution of terrorists. They submit that the houses in the village were burned by terrorists as they fled from the security forces. It refers to the findings of two public prosecutors in this regard.

The applicants maintain their account of events. They point out weaknesses and discrepancies in the witness statements relied on in the investigations carried out after the case was communicated to the Government. In particular, they note that of the seven witnesses one was not in fact in the village on the date of the incident, two others appear to refer to an operation being carried out on that date in contradiction to the statement of others who deny that the security services were there. They allege that four of the witnesses lived in hamlets 7-10 kilometres away and that there was a history of local enmity between the applicants and the witnesses relied on by the Government.

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 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)