FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31847/96 by Kemal GÃœVEN against Turkey

The European Court of Human Rights (First Section) , sitting on 30 May 2000 Chamber composed of

Mrs W. Thomassen, President ,

Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , Mr F. Gölcüklü, ad hoc judge,

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 April 1996 and registered on 12 June 1996,

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 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 national, born in 1950 and living in Istanbul. He is represented before the Court by Mrs Bedia Buran , a lawyer practising in Ankara.

A. The circumstances of the case

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

1. Applicant’s version of the facts

In May 1994 security forces under the command of Gendarme Captain Osman arrived in the Nurettin village of the Malazgirt district in the province of MuÅŸ . They assembled the inhabitants in the village square and told them that they had to be village guards and that those who did not agree would be obliged to move from the village and their houses would be burned down.

Two days after this incident, the applicant was taken away from his home, along with 14 other villagers, by a group of security forces composed of approximately 100 special team members and village guards. He was brought to the Malazgirt Gendarme Station, where he was punched, kicked and beaten up.

The applicant, after having stayed at the station for two days, was brought to the MuÅŸ Gendarme Station, where he was handcuffed and blindfolded. He was taken to a room to be interrogated. He was not given any food or water during his stay there and was not allowed to go to the toilet until 24 hours had passed. The applicant was forced to sleep on the concrete floor since he had not been given any bed or blanket.

The applicant was interrogated while he was blindfolded. He was asked why he had opposed the State’s laws and why he refused to be a village guard. The applicant told his interrogators that he had served his military service and paid his taxes and that he was opposed to becoming a village guard since this could put him in much more danger. The interrogators accused him of being a PKK terrorist since he did not agree to take weapons. They then subjected him to bastinado .

He was stripped naked and taken to another room. In this room, electrodes were tied to his toes and he was given electric shocks. His interrogators then threatened him as follows “We killed one of your friends here. We will kill you too.” Thereafter, they punched him in the stomach.

On the second day the applicant was hung from his arms and while he was hanging he was punched and beaten up again. He was hosed with pressurised cold water and told to be a village guard. Later, the applicant was put into a cell. He then requested to be taken to a doctor, but his request was refused.

The applicant was held in detention for 15 days in the Gendarme Headquarters of Malazgirt and MuÅŸ . He was forced to sign some papers while blindfolded.

On the last day of his detention the applicant was brought before the Public Prosecutor of Malazgirt , where he was interrogated about whether he confirmed the statements he made at the gendarme headquarters. The applicant wanted the Public Prosecutor to read out his statements before signing. The applicant denied the statement after the Public Prosecutor had read it. He then stated to the Public Prosecutor that he had never committed any crime in the past and that he was forced to be a village guard. The Public Prosecutor asked him whether he was a PKK member since he did not agree to be a village guard. After replying no, the applicant was released.

The applicant returned to his home in the Nurettin village following his release. Three days after he had returned to his home, 50-55 village guards, led by the chief village guard A.Ç. and his assistant A.E, came to his home and requested him to leave the village. The village guards threatened all those who did not agree to be village guards.

Some time later, 50 soldiers and 50 village guards came to the village with 3 armed personnel carriers, Land Rovers and jeeps, a total of 15 military vehicles. They came to the applicant’s house and ordered him and his family to leave. The applicant and his family at first refused, but since they were threatened with death, they left the house. The applicant’s house was then set on fire by the security forces.

On 15 July 1994 the applicant went to his field to collect crops.

He was hindered from collecting his crops by a group of 40-45 village guards. Then the applicant went to Malazgirt and lodged a complaint with Captain Osman . The Captain told him that he would not be allowed to collect his crops if he did not agree to be a village guard. Some days later, the soldiers, along with the village guards, collected all the crops in the village, but did not give them to their owners.

On 20 September 1994 the applicant left his village and moved to Istanbul with his family.

On 29 September and 10 October 1995 the applicant lodged petitions with the Principal Public Prosecutor’s office in Istanbul for submission to the Principal Public Prosecutor’s office in Malazgirt . He requested the authorities to initiate an investigation into the destruction of his property and the torture he suffered in custody. He further requested that the security forces and the village guards be brought to justice and the damage he sustained be redressed.

2. Government’s version of the facts

Custody records kept by the MuÅŸ Gendarme Station indicate that the applicant was placed in custody on 14 April 1994 at 10 a.m. and was released on 17 April 1994 at 11 a.m.

Subsequent to the receipt of the applicant’s petitions of 29 September and 10 October 1995 requesting an investigation into the alleged acts, the authorities began an investigation.

On 20, 21 and 22 November 1995 the Malazgirt Principal Public Prosecutor as well as the Malazgirt Gendarme Station Commander took statements from 10 village guards from the Nurettin village who had allegedly been involved in the impugned acts. The village guards denied the allegations that they had set the applicant’s house on fire. They all stated that the applicant, a PKK sympathiser, had himself burned his house since he did not want the security forces to find out that his house had been used as a shelter by PKK militants. They claimed that nobody collected the applicant’s crops in his fields. The village guards further asserted that the applicant did not have 150 acres of land in the village but only 15-30 acres, which were currently unused. They also stated that the total number of village guards in the Nurettin village was 33.

On 4 October and 7 November 1996 the Malazgirt Public Prosecutor sent rogatory letters to the Istanbul Principal Public Prosecutor’s office requesting that statements be taken from the applicant in relation to his complaints.

The Küçükçekmece Principal Public Prosecutor’s office in Istanbul carried out an investigation with a view to finding and taking the applicant’s statements in relation to the alleged events. In this respect, police officers from the Küçükçekmece Security Directorate went to the address indicated by the applicant in his petition containing his criminal complaints. The police officers, after having visited the address given by the applicant and taken statements from several inhabitants of the neighbourhood, found that the applicant did not live there.

On 3 April 1997 the Malazgirt Public Prosecutor went to the applicant’s village in order to carry out an investigation. He drew up a survey report of the scene of the incident. He noted that the applicant’s house was in ruins, its windows and doors were removed, but no trace of  the house having been burned was found. The Public Prosecutor also took statements from the applicant’s neighbour, Mehmet Özer , who stated:

“ Kemal Güven is my neighbour. He was taken into custody several times before he left the village and settled in the Malazgirt district.  I do not remember very well, but one night I saw that his house was burning. I do not know who burned the house. There was no one at the scene of the incident ... Kemal Güven had already removed his belongings and the house was empty.”

The Public Prosecutor took statements from an inhabitant of the village, Şahismail Kaçak who stated:

“I was in the village at the time of the incident. Kemal Güven bought a house in the Malazgirt district. He had taken his children as well as his belongings to Malazgirt . The house was therefore empty. Kemal had taken away even the wooden parts of the house. The remainder of the house collapsed by itself. I did not see the burning of the house.”             

On 8 April 1997 the Public Prosecutor wrote a letter to the Malazgirt Security Directorate. He requested police officers to find out who was currently using Kemal Dilek’s house.

On 18 July 1997 the Public Prosecutor sent a letter to the Gendarme General Command in Ankara. He asked the military authorities to indicate whether any operation had been carried out by security forces between May and September 1994 in the Nurettin village of the Malazgirt district.

By a letter of 8 September 1997 the Malazgirt District Gend arme Commander, Mr Halil Ä°brahim Pehlivan , informed the Public Prosecutor that no operation had been carried out by security forces between May and September 1997 in the Nurettin village.

On 20 April 1998 the Malazgirt Principal Public Prosecutor issued a decision of non ‑ jurisdiction in relation to the prosecution of the security forces and the village guards. He referred the preliminary investigation file to the Malazgirt District Administrative Council in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ). The Principal Public Prosecutor noted in the decision that, despite the inquiries made by the Gendarme General Command, a soldier named Captain Osman could not be identified.

The investigation into the applicant’s allegations is still pending before the authorities.

B. Relevant domestic law and practice

1. Administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

The above 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 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.

The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:

“... 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 .”

2. Criminal responsibility

Article 17 of the Turkish Constitution provides:

“... No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.”

Article 243 of the Turkish Criminal Code provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life...”

Article 245 provides:

“Civil servants charged with the forcible execution of an order, police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another shall be punished by between one and three years’ imprison ment and temporarily disqualified from holding public office.”

The Turkish Criminal Code makes it a criminal offence:

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),

(c) to issue threats (Article 191),

(d) to make an unlawful search of an individual’s home (Articles 193 and 194),

(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),

(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or

(g) to damage another’s property intentionally (Articles 516).

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 (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).

If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.

3. Provisions on compensation

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.

Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.

COMPLAINTS

The applicant alleges violations of Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicant alleges under Article 1 of Protocol No. 1 to the Convention that he was deprived of his right to peaceful enjoyment of his property on account of the burning of his house by the security forces and the seizure of his crops by the village guards.

The applicant complains under Article 3 of the Convention that he and his fellow villagers were subjected to collective punishment since they were forcibly evicted from their village by the security forces.

The applicant further complains under Article 3 of the Convention that he was beaten up, subjected to bastinado, hosed with pressurised water and given electric shocks during his custody at the Malazgirt Gendarme Station. He alleges that the treatment he suffered amounted to torture.

The applicant maintains under Article 6 of the Convention that he was unable to claim a remedy for the violations he had suffered on account of the lack of investigation against those responsible. The lack of any effective criminal proceeding prevents the applicant from bringing civil proceedings against those responsible.

The applicant asserts under Article 8 of the Convention that his right to respect for his family life was violated as he and his family were forcibly evicted from their village and his property was destroyed by the security forces.

He submits under Article 13 of the Convention that there are no effective remedies in domestic law against the misconduct of the security forces in the state of emergency region.

The applicant complains under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that he was a victim of a practice of violation of Article 14 on account of his Kurdish origin.

The applicant submits under Article 5 of the Convention that he was deprived of his right to liberty on account of his arbitrary det ention at the Malazgirt Gendarme Station.

He further alleges under Article 5 of the Convention that he and his family along with 100 other families were deprived of their security on the ground that they were forcibly evicted from their village by the security forces.

THE LAW

1. The applicant’s right to liberty and security

The applicant alleges a violation of Article 5 of the Convention on account of his arbitrary detention in custody at the Malazgirt Gendarme Station.

He further alleges that he and his family along with 100 other families were deprived of their security on the ground that they were forcibly evicted from their village by the security forces.

Article 5 of the Convention provides, in so far as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...”

The Government submit that the applicant has failed to exhaust domestic remedies since he has not availed himself of the remedies provided by Law no. 466. They maintain in this respect that the applicant could successfully seek compensation using the procedure laid down in Law no. 466, which provides a right to compensation for those who have been unlawfully deprived of their liberty.

The applicant contends in reply that he was arbitrarily deprived of his right to liberty since he was kept in custody without any plausible reason. He alleges that he cannot invoke Law no. 466 since his detention was in accordance with the domestic law in force at the relevant time.

The Court considers that the applicant’s complaints under Article 5 of the Convention should be examined in two limbs. With regard to the first limb of the complaints, t he Court notes that it is not required to decide whether or not the detention of the applicant at the Malazgirt and Muş Gendarme Stations disclose any appearance of a violation of Article 5 of the Convention, as Article 35 § 1 of the Convention provides that the Court “may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

The Court observes that the applicant was arrested on suspicion of his membership of the PKK. It appears from the facts submitted by the parties that the applicant’s detention in custody ended on 17 April 1994, whereas the application was introduced on 12 April 1996, that is more than six months after the detention of which complaint is made. The Court considers therefore that the act complained of must be considered time-barred in application of the six-months’ rule contained in Article 35 § 1 of the Convention and thus inadmissible under Article 35 § 4.

As to the second limb of the applicant’s complaints, the Court reiterates that the primary concern of Article 5 § 1 of the Convention is protection from arbitrary deprivation of liberty. The notion of security of person has not been given an independent interpretation (see applications nos. 5573/72 and 5670/72, decision of 16 July 1976, DR 7 p. 8; application no. 4626/70 et al., East African Asians v. the United Kingdom, decision of 6 March 1978, DR 13, p. 5).

In this respect, the Court points out that the insecurity of the applicant’s personal circumstances arising from the loss of his home does not fall within the notion of “security of person” for the purpose of Article 5 § 1 of the Convention (see the MenteÅŸ and Others v. Turkey judgment of 28 November 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2712, § 79 . Against this background, the Court considers that the second limb of the applicant’s complaint under Article 5 must also be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 thereof.

2. Alleged destruction of the applicant’s property and the alleged torture inflicted on the applicant during his detention in custody

The applicant complains of his and his family’s forced eviction from their village and destruction of their property by the security forces. He further complains that he was subjected to torture during his custody at the Malazgirt Gendarme Station. He invokes Articles 3, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

A. Government’s preliminary objections

The Government submit that the criminal investigation into the alleged eviction of the applicant from his village and destruction of his property by the security forces is still pending before the Malazgirt District Administrative Council. They claim that the applicant should await the outcome of the investigation.

The Government maintain that the applicant has failed to lodge an application with the judicial authorities in respect of his complaints concerning the alleged torture inflicted on him during his custody at the Malazgirt Gendarme Station. They submit, in the alternative, that the applicant has also failed to observe the six-month rule since he lodged his application with the Commission almost two years after his release from custody.

In sum, the Government contend that the complaints concerning the alleged eviction of the applicant from his village and the destruction of his property by the security forces as well as the complaints concerning the alleged torture inflicted on the applicant should be declared inadmissible on account of the appl icant’s failure to comply with the requirements of Article 35 § 1 of the Convention.

The applicant submits in reply that he has done all that could be expected of him in order to exhaust domestic remedies. In this respect, he points out that he lodged a petition with the Principal Public Prosecutor’s office on 10 October 1995 complaining about his eviction from his village and the destruction of his property by the security forces as well as the torture inflicted on him during his detention at the Malazgirt Gendarme Station.

The applicant alleges that the remedies in domestic law are ineffective on account of the reluctance of the authorities to investigate allegations concerning torture or destruction of property by security forces. He further contends that the authorities failed to carry out an effective and thorough investigation into his criminal complaints since there is and administrative practice of village burning and inflicting torture on detainees by security forces in the state of emergency region. In this connec tion, the appli cant requests the Court to reject the Government’s preliminary objections.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against a State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. However, there is no obligation under Article 35 § 1 to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal, one such reason being the failure of the national authorities to undertake an investigation or offer assistance in response to serious allegations of misconduct or infliction of harm by State agents (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, pp. 1210 ‑ 11, §§ 65-69, and the MenteÅŸ and Others v. Turkey judgment of 28 November 1997, Reports 1997 ‑ VIII, p. 2706, § 57).

The application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant or applicants (see the above-mentioned Menteş and Others judgment, p. 2707, § 58).

In this connection, the Court notes that the national authorities have, in fact, begun an investigation into the applicant’s complaints. The authorities took statements from several inhabitants of the applicant’s village as well as the village guards who had allegedly been involved in the impugned incidents. They further conducted a survey of the scene of the incident. However, subsequent to the Malazgirt Public Prosecutor’s decision of non ‑ jurisdiction in relation to the security forces, the authorities have not conducted any further investigation into the applicant’s allegations of torture and destruction of property. Furthermore, two years after the receipt of the investigation file no decision has been taken by the Malazgirt District Administrative Council and no one has been charged by the judicial authorities. The Court notes also that the Public Prosecutor did not make any inquiries into the applicant’s allegation of torture at the Gendarme Station despite the fact that under Turkish law he was under a duty to investigate (see relevant domestic law).

However, for the Court, when an individual formulates an arguable claim in respect of destruction of property, torture or killing involving the responsibility of the State, the notion of an “effective remedy”, in the sense of Article 13 of the Convention, entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access by the complainant to the investigative procedure (see the above-mentioned Menteş and Others judgment, p. 2715, § 89; the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2287, § 98; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 330, § 107). Otherwise, if an action based 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, 3 and 8 of the Convention or Article 1 of Protocol No. 1 thereto, the State’s obligation to pursue those guilty of such serious breaches might thereby disappear. The Court considers that the applicant’s amounted to an arguable claim in respect of both the alleged acts and the status of the persons implicated.

Accordingly, given the lack of effective investigation by the authorities into his complaints there was no requirement for the applicant to await the outcome of the criminal proceedings before the Malazgirt District Administrative Council.

In so far as the Government argues that the applicant’s complaint of torture has been filed out of time, the Court reiterates that where no domestic remedy is available the six months’ time-limit contained in Article 35 § 1 of the Convention in principle runs from the date of the act complained of in the application (see application no. 23413/94, decision of 28 November 1995, DR 83, p. 31).

However, special considerations could apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months’ period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see application no. 23654/94, decision of 15 May 1995, DR 81, p. 76).

In the present case, it appears that the applicant complained of the allegation of torture in his petitions of 29 September and 10 October 1995 addressed to the Malazgirt Principal Public Prosecutor’s office. It further appears that the applicant lodged his application under the Convention on 12 April 1996 after beginning to doubt that an effective investigation would be initiated into his allegation of torture by the national authorities. In these circumstances, the Court accepts that the six months’ time-limit within the meaning of Article 35 § 1 of the Convention started to run as from 12 April 1996 at the earliest and, consequently, that the application has been brought within this time-limit.

In the light of the foregoing, the Court concludes that the Government’s preliminary objections must be dismissed.

B. Merits

The Court considers, in the light of the parties’ submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. 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, by a majority,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaints, under Articles 3, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, concerning his alleged eviction from his village and the destruction of his property by the security forces as well as the alleged tortured inflicted on him during his detention in custody;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President