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AS TO THE ADMISSIBILITY OF

Application No. 23182/94

by Rabia DÜNDAR

against Turkey

The European Commission of Human Rights sitting in private on

28 November 1994 , the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

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 20 December 1993

by Rabia Dündar against Turkey and registered on 5 January 1994 under

file No. 23182/94;

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 national of Kurdish origin, born in

1953, was resident in the village of Güldiken in the Lice district. She

and her family are now resident in the city of Diyarbakir. She 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 applicant may be summarised as

follows:

On 24 June 1993, a raid was organised on the 200-household

village of Güldiken by around 600 soldiers and Special Team members.

The village were blockaded.

At around 6 a.m. 25 soldiers of the Lice and Diyarbakir Gendarme

stations surrounded the applicant's house. The applicant, her spouse

and her 8 children were in the house. The security forces, under the

order of N.A., the Lice Gendarme Station commander, came inside and

took them all out by the arm.

Then the soldiers collected the 5 quilts, 8 pillows, 5

mattresses, 3 carpets, 5 blankets, the sideboard, all the kitchenware,

2 sacks of flour, 2 sacs of bulgar, 2 sacks of rice and everything in

the house, put them in one room, poured petrol on them and set them

alight. The soldiers waited until everything had completely burnt.

During the fire, they said to the applicant's family "You help

terrorists, if the terrorists are fish in water, then you represent the

water, and we shall kill the fish by drying up the water". The soldiers

left the house without taking anyone into custody.

The applicant did not apply to any institution in relation to

this incident.

After their house was burnt down the applicant and her family

moved to Diyarbakir. They rented a 2-roomed house there. They have no

income other than the help of people around.

COMPLAINTS

The applicant complains of violations of Articles 3, 5, 6, 8, 14

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

As to Article 3 she states that the military operation which

involved the destruction of her home and possessions and the forced

expulsion of the villagers, including herself and her family, is a form

of collective punishment and constitutes inhuman treatment or

punishment. She also refers to discrimination on grounds of race or

ethnic origin.

As to Article 5 she complains of complete lack of security of the

person.

As to Article 6 she refers to the lack of a procedure whereby she

may have a fair and public hearing and challenge in an independent

court or tribunal the deprivation of her civil rights.

As to Article 8 the applicant complains of the destruction of her

home and personal belongings.

As to Article 14 she complains of discrimination which has

affected the enjoyment of her rights under Articles 3, 5, 6 and 8 of

the Convention and Article 1 of the First Protocol.

As to Article 18 she alleges that the interferences in the

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

permitted under the Convention.

As to Article 1 of the First Protocol, the applicant complains

of the destruction of her goods and property.

As to the exhaustion of domestic remedies, the applicant states

that the acts of destruction of villages are officially approved

policies of the State. She also states that as part of a counter

insurgency strategy the respondent Government is targeting civilians.

The applicant claims that she is released from any obligation to pursue

a domestic remedy under Article 26 of the Convention, because no remedy

in the circumstances could possibly prove adequate or effective. In

this regard she refers to arguments presented in two previous

applications (Nos. 21893/93 Akduvar v. Turkey and 21895/93 Cagirge v.

Turkey).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and

registered on 7 January 1994.

On 5 April 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 8 July 1994. At the

Government's request, this time-limit was subsequently extended until

8 August 1994.

By letter of 6 September 1994 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 October or November session.

No observations have been submitted by the Turkish Government.

THE LAW

The applicant complains of violations of Articles 3, 5, 6, 8, 14

and 18 (Art. 3, 5, 6, 8, 14, 18) of the Convention and Article 1 of the

First Protocol (P1-1) in connection with a military raid on her

village, in the course of which her home and possessions were

destroyed.

The Government, which 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,

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DÜNDAR v. TURKEY

DÜNDAR v. TURKEY

LEXI