SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35875/97 by Åžirin YILMAZ against Turkey

The European Court of Human Rights (Second Section), sitting on 14 June 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , judges ,

Mr F. Gölcüklü , ad hoc judge,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 April 1997 and registered on 29 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 29 June 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in 1964 and living in Diyarbakır , Turkey. He is represented before the Court by Mr Philip Leach, Mr Cihan Aydın , Ms Reyhan Yalçındağ and Mr Metin Kılavuz .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant’s version of the facts

The applicant is the husband of the deceased Sariye Yılmaz . He introduces the present application on his behalf and on behalf of his family and his deceased spouse.

At the time of the events at issue the applicant was living in the Bayırlı ( Karıncak ) village attached to the Lice district.

In June 1996 the commander of the Lice Gendarme Station, Hacı İlbaş , ordered all the villagers from the Bayırlı to leave their village. The message was given by the headman ( muhtar ) of the village.

In response, the villagers passed on a request through the headman to the commander to remain in the village for a further two or three months in order to harvest their crops. The villagers were considering vacating the village in autumn after they had finished this work.

Following this event, security forces from the Lice Gendarme Command began to pressurise and intimidate the villagers. They banned the cars coming in and out of the village for a week and the villagers were told to travel on foot. They confiscated the villagers’ belongings and livestock. The security forces also placed a food embargo on the village for 2 or 3 months. Flour, sugar and oil were not allowed to be brought into the village.

In the beginning of October 1996, soldiers came to the village and told the villagers to leave by 15 October.

On 7 October 1996 a clash broke out between the PKK and the security forces at the Cüm hill, which is situated between the village and Lice.

At about 3.00 a.m., after the clash was over, the soldiers who had been in position at the local boarding school fired four artillery shells at the village. One of the shells hit a home and a person called Hürmet Doğan was hit in the leg. The applicant, on hearing her scream and cry for help, opened the door to go to her assistance. His spouse, Sariye Yılmaz , pulled him back from the open door in order to first establish exactly where the cries were coming from. At this moment a second artillery shell landed 6 or 7 meters from the house and a piece of flying shrapnel stuck the applicant’s wife in the abdomen. The applicant tended the open wound by putting some cotton on it.

The applicant and his older brother, Adil Yılmaz , accompanied by the applicant’s relatives, Mehmet Tataş , Ramazan Yaşar , Abdullah Doğan set out for Lice in order to take his wife to the health clinic. The applicant’s wife died on the way to Lice. The applicant and his relatives decided to go back to the village.

On the way back to the village security forces on the Cüm hill shot warning shots at the villagers in order to stop them. A senior lieutenant and 20 soldiers came up to the villagers. The senior lieutenant examined the wound and the applicant’s wife’s corpse and wrote a report which stated that his wife had been struck by artillery shell fire and died as a result of the wounds. The applicant said to the lieutenant that he wanted to bury his wife’s body in the village but he also asked an autopsy to be carried out on his wife. He was told that there was no need for an autopsy and that the senior lieutenant would ensure that his report was given to the relevant authorities.

On 8 October 1996 at 2.00 p.m. a captain from Lice came to the village accompanied by 70 soldiers. The captain inquired about the circumstances of the applicant’s wife’s death. The applicant told him that his wife had been killed by artillery shell fire and that the senior lieutenant had seen the corpse and confirmed this in his report. The captain contacted the senior lieutenant by radio and confirmed that the applicant’s wife had been killed by artillery shell fired by the soldiers.

The applicant requested the captain to organise an autopsy on his wife. The captain rejected the applicant’s request on the grounds that the prosecutor and the doctor refused to come to the village for security reasons. The captain said that he would forward the senior lieutenant’s report to the prosecutor. The applicant buried his wife.

On 10 October 1996 the applicant went to see the commander of the Lice Gendarme Station, Hacı İlbaş . The commander prepared a petition for the applicant to sign which would blame the PKK for the incident. The applicant was asked to sign it and bring it to the office of the State of Emergency Region Governor. The applicant refused to sign it.

On 16 October 1996 the applicant filed petitions with the offices of the Diyarbakır District Governor and the State of Emergency Region Governor. He stated that his wife had died after a piece of flying shrapnel stuck her. He further stated that he had moved to Diyarbakır with his seven children since his village had been evacuated. The applicant requested that an investigation be initiated concerning his wife’s death. He also requested compensation from the authorities.

On 19 October 1996 the applicant filed a petition with the Diyarbakır State Security Court. On the same date the applicant met with the Lice public prosecutor and the Lice District Governor. The District Governor told the applicant that he had not been informed about his wife’s death. The public prosecutor, when asked whether he had received the report of the senior lieutenant, replied that the report was with the gendarme station and that he had not received any reports.

On the same date the applicant went to the Populations Office ( Nüfus Müdürlüğü ) to report his wife’s death. In this office the applicant found some documents which had been sent from and prepared by the Gendarme Station. It was stated in these documents that the members of the PKK came to the village and asked the villagers for help. When the villagers refused such help they started shooting and killed the applicant’s wife.

On 26 October 1996 the applicant went to the Lice Help Fund where he was informed that the Committee, consisting of the Mayor, the Commander of the Gendarme Station, the District Governor and the public prosecutor, had decided to grant him 15,000,000 Turkish liras.

On 5 November 1996 the applicant filed petitions with the offices of the Minister of Internal Affairs and the Minister of Foreign Affairs. He stated that, when examining the documents in the case file concerning the incident at the office of the Lice public prosecutor, he had read that his wife had been killed by the PKK. He further stated that he would lodge an application with the European Commission of Human Rights. He finally requested that an investigation be initiated concerning his wife’s death.

The applicant did not receive any reply to these applications.

2. The Government’s version of the facts

On 7 October 1996, at around 3.00 a.m., a group of terrorists attacked the security forces which were positioned at the Hoştaşı hill near the Bayırlı village at the Lice district. At around 4.30 a.m. the terrorists tried to escape through the Bayırlı village. When they arrived in Bayırlı the terrorists fired at the houses. The applicant’s wife and a person called Hürriyet Doğan were wounded in the incident. The applicant’s wife died at a later time. The security forces identified the footsteps of the PKK members and found their weapons in the village.

On 7 October 1996 the villagers, Abdullah and Hürriyet Doğan , gave statements to Sergeant Nuri Yüksel . In their statements they stated that on 7 October 1996, at around 3.00 a.m., 25 or 30 terrorists came to their village and indiscriminately opened fire with rockets and long-barrel guns. Hürriyet Doğan was wounded and the applicant’s wife died in the incident.

On 8 October 1996 the applicant and a villager, Feyzi DoÄŸan , gave statements.

The applicant stated as follows:

“On 7 October 1996, at around 3.00 hours, I heard shootings coming from the Cum hill which is in the south of our village. My family and I were sleeping. I went out of the house. It was silent in the village. At around 4.00 hours I heard [people] screaming in the village. These sounds were coming from a distance. Then, I heard shootings in the village. My wife came to look for me. I was out of the house then. They were shooting indiscriminately. My wife was wounded in the abdomen as a result of these shootings. I took her in the house but I could not do anything since the shootings were still ongoing outside. I waited at home until 5.00 a.m. When the shootings were over I called my relatives in order to take my wife to the hospital. We set out for Lice. .... She died when we reached the Cum hill. After a short while they brought H ü rriyet Doğan who was also wounded. They went to Lice and we returned to the Bayırlı village. We buried my wife in the village. Afterwards, I learned that the members of the PKK had come to our village asked for a donkey from the villagers. They had said that there was a wounded person with them. I did not hear anything. Abdullah Ş aybak’s donkey had been lost. We do not know what has happened to the donkey. The shooting continued towards the east end of the village and then the shootings ceased.”

On 30 October 1996 the Lice Social Help and Solidarity Found ( Yardımlaşma ve Dayanışma Vakfı ) decided to award an amount of TRL 15,000,000 to the applicant.

It was paid to the applicant on 1 November 1996.

On 13 December 1996 the Lice public prosecutor, İ. Ethem Kuriş , issued a decision of lack of jurisdiction ( görevsizlik kararı ) as the matter concerning the death of the applicant’s wife fell under the jurisdiction of the State Security Court. In his decision Mr Kuriş stated that a group of unidentified PKK terrorists conducted a raid near the Hoştaşı area in the Lice district. When the security forces opened fire the terrorists tried to escape through the Bayırlı village. Saliye Yılmaz died in this incident.

On 25 March 1997, Yılmaz AktaÅŸ , the public prosecutor at the Diyarbakır State Security Court issued a decision joining the investigation case-files nos. 1996/3493 and 1996/4234 as both files concerned the allegation of the killing of the applicant’s wife by the members of the PKK on 7 October 1996. The prosecutor specified that the investigation case-file no. 1996/3493 had been opened by his office. The investigation case-file no. 1996/4234 had been opened when the Lice public prosecutor had decided to transfer the case-file to his office. The joint investigation remained registered under no. 1996/3493. 

By a letter dated 5 October 1998, Hasan Turan Yavuzyılmaz , a public prosecutor at the Diyarbakır State Security Court, wrote to the office of the Lice public prosecutor that no autopsy or forensic examination had been carried out on Sariye Yılmaz who died in the incident that took place on 7 October 1996 in the Bayırlı village. The prosecutor pointed out that the competent public prosecutor had failed to inform the authorities of the death of the applicant’s wife. Mr Yavuzyılmaz concluded that this fact would constitute a criminal offence and therefore an investigation should be initiated against the responsible persons.

By a letter dated 6 October 1998 the Mr Yavuzyılmaz , referring to the applicant’s application to the European Commission of Human Rights, requested an authorisation from the Ministry of Justice in order to initiate an investigation against the Lice public prosecutor, Nihat Altunok , who had failed to organise an autopsy on the applicant’s wife.

B. Relevant domestic law and practice

1. Criminal law and procedure

The Turkish Criminal Code ( Türk Ceza Kanunu ), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Articles 448) and aggravated murder (Article 450).

Pursuant to Articles 151 and 153 of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ; hereinafter referred to as “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP).

If there is evidence to suggest that a deceased has not died of natural causes, the police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). Pursuant to Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty shall be liable to imprisonment.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.

Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).

2. Administrative liability

Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:

“All acts and decisions of the administration are subject to judicial review ...The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the 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.

3. Civil action for damages

Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court and the issue of the defendant’s guilt (Article 53).

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that his wife, Sariye Yılmaz , was killed by artillery shells that were fired by the security forces. He also submits that the national authorities did not carry out an effective investigation into the death of his wife.

2. The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment by the security forces as they tried to force the villagers to evacuate their village. He submits that the security forces started a food embargo, banned cars from moving in and out of the village and confiscated the villagers’ belongings.

3. The applicant complains under Articles 6 and 13 of the Convention that there existed no effective domestic remedies since his complaints have not been dealt effectively. The applicant submits that he cannot have his civil rights determined since there has been no attempt to investigate his version of events.

4. The applicant complains under Article 8 of the Convention that the killing of his wife was an undue interference with his right to family life. He submits that the interference with his produce, livestock and his way of life constituted a violation of Article 8 of the Convention.

5. The applicant complains under Article 1 of Protocol No 1 to the Convention that he was deprived of the peaceful enjoyment of his possession and that he had to leave his village as a result of a State practice in the south-east of Turkey.

6. Relying on Article 14 of the Convention in conjunction with Articles 2, 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant complains that he and his family are subjected to discrimination on grounds of their ethnic origin.

7. The applicant finally alleges that the policy of the Turkish authorities, in allowing the military to suppress the problems in the south-east of Turkey by methods which include the evacuation and destruction of villages in the south-east of Turkey, constitutes a violation of Article 18 of the Convention.

THE LAW

The applicant complains under Article 2 of the Convention of the killing of his wife by the security forces.

The applicant further complains that there existed no effective domestic remedies since his complaints have not been dealt with effectively and that he cannot have his civil rights determined. He invokes Articles 6 and 13 of the Convention in this respect.

The applicant also complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of the peaceful enjoyment of his possessions and that he had to leave his village as a result of a State practice in the south-east of Turkey. The applicant also relies on Articles 3 and 8 of the Convention in respect of these facts.

The applicant finally alleges violations of Articles 14 and 18 of the Convention.

A. The Government’s objections to the admissibility

1. Exhaustion of domestic remedies

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention concerning his complaints under Article 2 of the Convention.

The Government point out that an investigation has been opened in the course of which various investigative measures have been taken. This investigation is still on going before the Diyarbakır State Security Court. According to the Government, the applicant lodged an application with the Commission before waiting the results of this investigation. The Government infer from this that the domestic remedies had not been exhausted when the application was made and that, consequently, the Court should declare the application inadmissible.

The Government submit that the public prosecutor at the Diyarbakır State Security Court requested an authorisation to prosecute from the Ministry of Justice regarding the Lice Public Prosecutor’s negligence in not having conducted an autopsy on the applicant’s wife. The Government point out that burying a dead body without informing the authorities would constitute a criminal offence under Turkish law.

The Government also submit that it would have been possible for the applicant to seek redress before the administrative courts under Article 125 of the Constitution. Under Turkish administrative law the State’s liability to pay compensation can be engaged, firstly, where the agents of the State are at fault. The State can subsequently recover the compensation paid from those responsible for the harm caused. Secondly, the State cannot escape liability to pay compensation in respect of damage shown to have been caused by its agents or to have occurred in connection with the provision of security. In this regard, the Government indicated that the administrative courts have awarded compensation in many cases involving death, injury or damage to property.

In the alternative the Government submit that the applicant could also have lodged a civil action for redress for damages sustained through illegal acts or patently unlawful conduct on the part of the State’s agents.

The Government further point out that, if committed, the alleged acts complained of by the applicant before the Court would indeed have been punishable under Turkish criminal law. Furthermore, if the acts complained of were committed by military personnel, the latter would be prosecuted under Articles 86 and 87 of the Military Criminal Code for placing human life at risk, causing damage to property and non-compliance with orders. The civilians have also recourse to these remedies under national law.

In this respect the Government observe that the applicant did not avail himself of any of these remedies in domestic law.

In reply the applicant submits that he was not required to exhaust domestic remedies since these remedies are inadequate and ineffective.

The applicant maintains that a remedy which consisted merely of monetary compensation and which ignored the responsibility of the security forces was wholly unacceptable. He points out that he received no response to his complaints submitted to the national authorities immediately after the incident. No investigation has taken place which has resulted in the identification of those responsible for the killing of his wife.

The applicant concludes that he has done everything that could have been reasonably expected of him to exhaust domestic remedies by lodging petitions with the national authorities.

The Court considers that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Yaşa v. Turkey judgment of 2 September 1998, Reports of judgments and Decisions 1998-VI, p. 2431, § 71).

As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff to such an action must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (see the Yaşa v. Turkey judgment , loc. cit. § 73). In the instant case, however, it appears that it is still unknown who was responsible for the killing of the applicant’s wife.

As to an action in administrative law under Article 125 of the Constitution, the Court notes that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a prerequisite to bringing such an action. However, the investigations which the Contracting States were obliged by Articles 2 and 3 of the Convention to conduct in cases of fatal assault or allegations of torture had to be able to lead to the identification and punishment of those responsible. That obligation accordingly could not be satisfied merely by awarding damages. Otherwise, if an action b ased on the State’s strict liability were to be considered a legal action that had to be exhausted in respect of complaints under Articles 2 and 3, the State’s obligation to seek those guilty of fatal assault might thereby disappear (see, Oğur v. Turkey no. 21594/93, § 66, ECHR 1999 and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998, p. 3290, § 102).

Consequently, the Court is of the opinion that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

Insofar as the applicant has allegedly failed to file a criminal complaint, the Court notes that, under Turkish law, this is not a condition for the opening of a criminal investigation of a suspected unlawful killing. It appears that, in the present case, the criminal investigation of the killing of the applicant’s wife was in fact opened ex officio . The Court is, therefore, of the opinion that the applicant was not required to make a further explicit request to this effect by filing a criminal complaint as this would not lead to any different result in this respect.

The question arises whether or not the criminal investigation at issue can be regarded as effective for the purposes of the Convention. The Court considers that this question cannot be answered at this stage of the proceedings, it being closely linked to the substance of the applicant’s complaints. It should therefore be joined to the examination of the merits.

Having regard to the above considerations the Court dismisses the Government’s objections in this respect.

2. Six-months rule

The Government submit that the application has been submitted out of time in that the alleged events complained of occurred on 7 October 1996 whereas the application was introduced more than six months later, namely on 10 April 1997. The Government argue that, as the applicant considers that there are no effective domestic remedies available in this respect of his complaints under the Convention, he should have submitted his complaints within six months after the date on which the alleged events took place.

The Government next submit that the applicant has lodged his application before awaiting the result of the investigation pending before the national authorities. They submit that the investigation into the death of the applicant’s wife is still ongoing before the Diyarbakır State Security Court.

In reply the applicant submits that he lodged his application with the European Commission of Human Rights on 8 April 1997, which is within six months of the day of the incident. The applicant also submits that even if the above arguments are not accepted , the six-month period could at the very latest run from 16 October 1996, when he complained to the domestic authorities about the killing of his wife . In the applicant’s submissions, where domestic remedies prove ineffective the six months period commences to run from the date the applicant becomes aware, or should reasonably have become aware, of this effectiveness.

The Court considers that the question whether the application was lodged within six months pursuant to Article 35 § 1 of the Convention cannot be answered at this stage because it is linked to the question whether the criminal investigations were effective remedies. Since this question has been joined to the examination of the merits, the question of compliance with the six months rule must also be joined to the merits.

B. Merits

1. The alleged killing of the applicant’s wife

The applicant complains under Article 2 of the Convention of the killing of his wife by the security forces. He also relies on Articles 6 and 13 of the Convention on this point.

The Government submit that it is unnecessary to examine the applicant’s allegation that the security forces are responsible for the killing of his wife since the proceedings concerning this allegation are still on going before the national authorities.

In reply the applicant maintains that the Government’s submissions are mere assertions based on wholly inadequate investigations, which are insufficient to rebut the evidence of the applicant.

As regards the applicant’s complaints in relation to the killing of his wife, the Court considers in the light of the parties’ submissions, that the complaints raise 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 Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The alleged deprivation of the peaceful enjoyment of the applicant’s possession

The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of the peaceful enjoyment of his possessions and that he had to leave his village as a result of a State practice in the south-east of Turkey. The applicant also relies on Articles 3 and 8 of the Convention in respect of these facts.

The Government maintain that the applicant has failed to bring his allegations to the attention of the national authorities. They submit that Turkish law provides redress to such allegations.

The Court considers in the light of the parties’ submissions that the complaints raise 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 Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. Articles 14 and 18 of the Convention

Finally, the applicant complains that he and his family have been subjected to discriminatory treatment contrary to Article 14 of the Convention and that Article 18 of the Convention has been violated in that the killing of his wife and deprivation from his possessions form a part of State practice in south-east Turkey.

The Government maintain that all individuals were equal before Turkish law without discrimination.

The Court considers in the light of the parties’ submissions that the complaints raise 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 Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Joins to the merits the question concerning the effectiveness of the criminal investigation and the issue relating to the six months rule;

Declares the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis              Registrar              President