FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31821/96 by Halima Musa ISSA, Beebin Ahmad OMER, Safia Shawan IBRAHIM, Fatime Darwish MURTY KHAN, Fahima Salim MURAN and Basna Rashid OMER against Turkey

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

Mrs W. Thomassen, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr B. Zupančič, Mr T. Panţîru, 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 2 October 1995 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are six women from northern Iraq, born in 1950, 1970, 1951, 1939, 1949 and 1947 respectively. The first applicant is bringing the application on her own behalf and on behalf of her dead son, Ismail Hassan Sherif . The remaining applicants are bringing the application on their own behalf and on behalf of their dead husbands, Ahmad Fatah Hassan , Abdula Teli Hussein, Abdulkadir Izat Khan Hassan , Abdulrahman Mohammad Sherriff and Guli Zekri Guli respectively. Finally, the fourth applicant is also bringing the application on behalf of her dead son, Sarabast Abdulkadir Izat . T he applicants are represented before the Court by Mr Kevin Boyle and Ms. Francoise Hampson , barristers practising in the United Kingdom, as well as by Mr Kerim Yildiz .

The applicants

The applicants’ submissions concerning the facts of the case may be summarised as follows.

The applicants are shepherdesses who make their livelihood by shepherding sheep in the valleys and hills surrounding their village of Azadi in Sarsang Province near the Turkish border. Their deceased relatives had the same occupation.

On 1 April 1995 the applicants learned that the Turkish army, which had crossed earlier into Iraq, was in their area. They saw military activity and witnessed military helicopters transporting soldiers and food in the valley down from their village.

On the morning of 2 April 1995 Ismail Hassan Sherif , Ahmad Fatah Hassan , Abdula Teli Hussein, Abdulkadir Izat Khan Hassan , Abdulrahman Mohammad Sherriff , Guli Zekri Guli and Sarabast Abdulkadir Izatthe , together with the first, third, fourth and fifth applicants, left the village to take their flock of sheep to the hills. The second and sixth applicants remained in the village to take care of their children.

After the party of the eleven shepherds (the first, third, fourth and fifth applicants and Ismail Hassan Sherif , Ahmad Fatah Hassan , Abdula Teli Hussein, Abdulkadir Izat Khan Hassan , Abdulrahman Mohammad Sherriff , Guli Zekri Guli and Sarabast Abdulkadir Izatth ) had walked for fifteen minutes in the direction of Spna , the four women walking in front of the seven men, they met Turkish soldiers. The latter started shouting abuse at the eleven shepherds, beating them with their rifle butts, kicking them and slapping them on the face. Then they separated the women from the men. They told the women to return the village and took the men away. The four applicants returned to the village and told the other villagers what had happened.

In the meantime the second and sixth applicants had started worrying about their husbands. They had heard gunfire and had been told by a fellow villager that the Turkish army had been nearby and that the shooting had been coming from the direction of a cave situated outside the village in the direction of Spna . The villager had thought that Turkish soldiers had been firing inside the cave. As a result the second and sixth applicants together with three other identified women decided to go to look for their men in the direction of the cave. This occurred before the first, third, fourth and fifth applicants returned to the village. When the second and sixth applicants and the three other women reached the Turkish soldiers they saw the shepherds with them. The soldiers fired in their direction. The women left and went to the valley . There they met another group of soldiers and requested permission to talk to the men. The soldiers pointed their guns at them and the women left.

Instead of going to the village, the five women tried to hide in the valley but were spotted by the soldiers who threatened them with death. Eventually the women reached the cave but the men were not there. They saw a military helicopter land. They asked the soldiers for permission to see their men but the soldiers refused. The five women continued with their search until about 1 o’clock p.m. with no success. Then they returned to the village and told their fellow villagers what had happened.

Some of the village men, accompanied by members of the Kurdistan Democratic Party (“the KDP”), went to Anshki , a nearby town where a bigger Turkish military unit was based. It was this unit that oversaw the military operation in the area. The village men asked the officer in charge to release the shepherds and to let them fetch the flock of sheep from the hills. The officer first claimed not to know anything about the shepherds. Then he promised the representatives of the KDP that the shepherds would be released. As this did not happen, the KDP representatives made several additional attempts to get information. The officer said that if the shepherds were detained, they would be released. He eventually gave permission for the men to fetch the flock of sheep. He denied that the shepherds had been detained but warned the men not to look for them. When the men asked why they should not, the officer became angry and did not reply. When the men went to fetch the flock of sheep, they looked for the shepherds but could not find them.

On 3 April 1995 the Turkish army withdrew from the area around the village and the village men set out in the direction of Spna to look for the seven disappeared shepherds. In an area close to where the seven shepherds had last been seen with the Turkish soldiers they found the bodies of Ismail Hassan Sherif , Ahmad Fatah Hassan , Abdulkadir Izat Khan Hassan , Sarabast Abdulkadir Izat and Abdulrahman Mohammad Sherriff . The bodies had been shot at several times and were badly mutilated - ears, tongues and genitals missing. They were taken to the main road and from there to Azadi hospital in Dohuk where autopsies were conducted.

On 4 April the KDP held a press conference in Dohuk . Mr SN, the KDP Chief for the Amedi region, stated that, upon receiving information that several shepherds had been arrested by Turkish soldiers, he had visited the Turkish army commander in Kadish and had asked for their release. He had handed him a list with names. The commander had told him that he would take action. The commander had radioed his troops and had told SN that the men and sheep would be released. SN had returned to his office. Not having received any news, he had returned to the commander who had promised that the shepherds would be released after the military operation. SN had made four or five representations to the commander during that day. The Turkish army having withdrawn during the night, SN had returned to the commander the morning after. On that occasion the commander had denied having arrested the shepherds. He had told SN that they might have been killed. At the press conference SN exhibited the list he had given to the Turkish commander with the names of the seven shepherds on. The six applicants were also present at the conference and answered questions.

On 5 April 1995 the bodies of Abdula Teli Hussein and Guli Zekri Guli were also found in a state similar to that of the bodies of the other five shepherds.

On 5 April the husband of the first applicant was killed in a separate incident. The four brothers of the husband of the fifth applicant were also killed in a separate incident. These incidents do not form part of the present application.

On 7 April 1995 the six applicants and other witnesses were interviewed by Dr RA and Mr Kerim Yildiz in the presence of the muhtar of the Tamim area of Sarsang province.

The six applicants have since made several petitions to the authorities of the region to investigate the deaths of their relatives. They applied to the Governor of Dohuk and gave statements. The Governor said that the deaths would be investigated. However, the applicants have no knowledge of any steps having been taken in this regard.

The Government

The respondent Government confirm that an operation of Turkish military forces took place in northern Iraq between 19 March 1995 and 16 April 1995. The Turkish forces proceeded up to mount Medina . The records of the armed forces do not show the presence of Turkish soldiers in the area indicated by the applicants, the Azadi village being ten km south of the operation area. There is no record of a complaint made to any of the officers of the units that operated in the mount Medina region.

COMPLAINTS

The applicants allege, both in their own names and on behalf of their dead relatives, that they have been victims of the following violations of the Convention:

1. violation of Article 2 on account of the intentional deprivation of life not attributable to any of the exhaustive purposes listed in paragraph 2;

2. alternatively, violation of Article 2 on account of the deprivation of life attributable to a use of unlawful acts of war;

3. violation of Article 2 on account of the failure adequately to protect the right to life by initiating legal proceedings to determine whether or not those responsible for the deaths acted lawfully;

4. violation of Article 2 on account of the inadequate protection of the right to life in domestic law;

5. violation of the applicants' relatives' right under Article 3 on account of the infliction of mutilation which, if they were alive at the time, is torture;

6. violation of the applicants' right under Article 3 on account of the infliction of mutilation on their relatives which caused severe distress and was degrading on account of their religious belief;

7. violation of the applicants' right under Article 3 on account of the distress caused by the unacknowledged detention of their relatives;

8. violation of the first, third, fourth and fifth applicants’ right under Article 3 on account of the ill-treatment inflicted on them when they were stopped by the soldiers;

9. violation of Article 5 on account of the unlawful detention of the applicants' relatives which was not attributable to any of the exhaustive purposes listed in the Article;

10. violation of Article 8 on account of the unjustifiable interference in family life caused by the killing of the applicants' relatives;

11. violation of Article 13 on account of the lack of any independent national authority before which these complaints can be brought with any prospect of success;

12. violation of Article 14 on account of discrimination on grounds of race and/or ethnic origin in the enjoyment of the rights guaranteed by Articles 2, 3 and 8 of the Convention;

13. violation of Article 18 on account of lack of good faith in the implementation of international obligations.

THE LAW

The applicants complain of violations of Articles 2, 3, 5, 8, 13, 14 and 18 of the Convention which provide:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 18

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The Government argue that there is no evidence that the application has been submitted within the six-month time-limit in Article 34 § 1 of the Convention. They also submit that the applicants have not exhausted domestic remedies because they never requested the Turkish authorities to make an investigation of the alleged events. Finally, the Government assert that, if the facts really took place, the perpetrators did not belong to the Turkish armed forces. As for the rest, they are not in a position to furnish any relevant information.

The applicants state that they complied with the six-month rule. As regards the question of exhaustion of domestic remedies, they submit that, where complaints arise out of a situation created by military action, it is for the respondent Government to establish that practical and effective remedies are available. In addition, the applicants are very poor, have no passports and would, in any event, not be admitted to Turkey to pursue any remedies theoretically available there. The applicants did use the only mechanism available at the time when they reported the detention of their relatives to the Turkish army commander. However, their complaint was not recorded. Furthermore, the applicants point out that there is no evidence of a complaints-office having been established to deal with complaints during or after the operation. As regards the responsibility of the Turkish Government, the applicants point out that there is testimony as to presence of Turkish soldiers in the area at the time. No other armed forces were present. The respondent Government did not make any attempt to obtain information.

The Court notes that the application concerns events that occurred between 2 April 1995 and 5 April 1995. The applicants raised their complaints in a fax that they sent to the European Commission on Human Rights on 2 October 1995, the original of which exists in the case-file. It follows that they have complied with the six-month time-limit in Article 35 § 1 of the Convention.

As regards the Government’s objection that the applicants have not exhausted domestic remedies, the Court reiterates that Article 35 § 1 obliges those seeking to bring a case under the Convention to use first remedies in the domestic legal system that are normally available and sufficient to afford 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. However, the rule of exhaustion 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 individual case. This means among other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).

The Court notes that the applicants of the present case are six villagers from northern Iraq who make their livelihood by shepherding sheep. In the view of the Court, these factors lend credence to the applicants’ argument that the judicial mechanism of Turkey, a foreign country, was physically and financially inaccessible to them.

It is true that the respondent Government have indicated that, in the circumstances of the applicants’ case, the most appropriate remedy would have been a request to the Turkish authorities for an investigation. It is also true that the Turkish army, about the conduct of which the applicants complain, remained in northern Iraq until 16 April 1995. However, the Court is not convinced that the Turkish armed forces in Iraq had effective mechanisms for the examination of complaints such as those raised by the applicants. The Court notes in this connection the applicants’ claim that the Turkish military authorities failed to react to the various complaints made on their behalf about their relatives’ detention on 2 April 1995. Moreover, the Court notes that the Turkish authorities failed to conduct a meaningful investigation into the events after the case was communicated to the Government by the Commission, although it was specifically mentioned in the application form that an identified KDP official had reported the detention of the applicants’ relatives to the Turkish army commander. All the Turkish authorities did was a routine check of the records of the units operating in the mount Medina region at the time. In the Court’s view, all the above are indications of the absence of effective mechanisms for the investigation by the Turkish army of complaints such as those raised by the applicants. Moreover, the Court considers that the Turkish authorities’ reaction in this case must not be seen in isolation; rather it must be seen in the context of their general reluctance to deal with allegations of involvement of State agents in unlawful conduct (see, inter alia , Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, op. cit. , p. 2287, § 99; Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I , p. 331, § 108; Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV , p. 1520, § 67; Selcuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II , p. 913, § 97; Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III , p. 1190, § 142; Gulec v. Turkey judgment of 27 July 1998, Reports 1998-IV , p. 1733, § 82; Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV , p. 1782, § 98; Yasa v. Turkey judgment of 2 September 1998, Reports 1998-VI , p. 2442, § 115; Ogur v. Turkey judgment of 20 May 1999, to be published in Reports 1999 , § 93; Cakici v. Turkey judgment of 8 July 1999, to be published in Reports 1999 , § 80; Tanrikulu v. Turkey judgment of 8 July 1999, to be published in Reports 1999 , §§ 101-111; Kilic v. Turkey judgment of 28 March 2000, to be published in Reports 2000 , §§ 78-83; Mahmut Kaya v. Turkey judgment of 28 March 2000, to be published in Reports 2000 , §§ 102-109; and Sevtap Veznedaroglu v. Turkey judgment of 11 April 2000, to be published in Reports 2000 , §§ 30-35). In these circumstances, the Court finds that the applicants were not required under Article 35 § 1 of the Convention to apply for an inquiry to the Turkish army authorities in northern Iraq, this not having been shown to constitute a remedy t he existence of which was sufficiently certain in practice.

The Court has found that the applicants were dispensed from trying to institute judicial proceedings in Turkey. It has also found that they were not required to request an inquiry from the Turkish army authorities in northern Iraq. Moreover, the Government do not allege that there existed any other accessible and effective remedies that the applicants could have used to obtain redress for the alleged violations. The application cannot therefore be rejected for failure to exhaust domestic remedies.

Having examined the parties' remaining observations, the Court considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Wilhelmina Thomassen Registrar President