FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Four applications against Turkey

no. 30953/96 no. 30954/96 no. 30955/96 no. 30956/96

by İ.İ. by İ.Ş. by K.E. by A.Ö.

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 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 18 March 1996 and registered on 3 April 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 first applicant, İ. İ., is a Turkish citizen born in 1945 and living in Şırnak , Turkey. The applicant lodged his complaint on behalf of his son, İ. İ., who disappeared while in custody. The second applicant, İ. Ş., is a Turkish citizen born in 1933 and living in Şırnak . He lodged his complaint on behalf of his son, A. Ş., who disappeared while in custody. The third applicant, K. E., is a Turkish citizen born in 1960 and living in Şırnak . She lodged her complaint on behalf of her husband, B. E., who disappeared while in custody. The fourth applicant, A. Ö., is a Turkish citizen born in 1956 and living in Şırnak . He lodged his complaint on behalf of his brother, A. Ö., who disappeared while in custody.

The applicants are represented in the proceedings before the Court by Oktay Bağatır and Sedat Özevin , both lawyers practising in Batman, Turkey

A. The circumstances of the case

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

The applicants were living in Kırkağaç village together with their families. In 1994, all the inhabitants of Kırkağaç were evacuated on the instructions of the security forces and moved to Fındıklı village.

On 13 August 1994 an operation was carried out in the village by gendarmes from the Fındıklı district gendarme station in Fındıklı . The gendarmes searched all the houses in the village but found nothing. The applicants' relatives were taken from their houses and flown by helicopter to an unknown place. The applicants state, without submitting supporting documentation, that two gendarme officers, Captain Namık , and a non-commissioned officer, Mustafa Pehlivanlı , were commanding the gendarme forces during this operation.

On 14 and 19 September 1994 two of the disappeared persons’ relatives, but not the applicants, applied to the Gendarme Division in Şırnak in connection with their relatives’ whereabouts.

Without submitting supporting documents, the applicants all allege that they applied several times to the Office of the Public Prosecutor in Şırnak , to the Ministry of Justice, the Ministry of Interior and the Office of the Governor of the state of emergency region about the whereabouts of their relatives.

On 5 May 1995 the applicants, Ä°. Åž. and Ä°. Ä°., applied to the Human Rights Association requesting their help in obtaining information about their missing relatives.

According to the Government, on 6 March 1995 the Office of the Eruh Public Prosecutor took statements from İ. Ş. and İ. İ.. The public prosecutor invited B. E. and A. Ö. as well as two of their relatives, A. Ö. and H. E., to give statements. These statements have not been provided by the Government.

The public prosecutor issued a decision of non-jurisdiction on the ground that Mustafa Pehlivanlı , the non-commissioned officer accused by the applicants of having kidnapped their relatives, was a military officer. On 12 June 1995 the public prosecutor sent the file to the Diyarbakır Public Prosecutor attached to the Diyarbakır 7th Military Army Corps.

On 23 June 1995 the Diyarbakır Public Prosecutor attached to the Diyarbakır 7th Military Army Corps issued a decision of non-jurisdiction and sent the file to the Diyarbakır Public Prosecutor attached to 2nd Tactics Air Forces Command on the grounds that Mustafa Pehlivanlı , the non -commissioned officer accused by the applicants of having kidnapped their relatives, was attached to the Fındık 6th Gendarme Commando Battalion Command and that the latter Command had jurisdiction to take his statement.

On 13 February 1996 the Konya Public Prosecutor, attached to Konya Provincial Gendarme Command, took a statement from Mustafa Pehlivanlı .

In his statement Mustafa Pehlivanlı declared that on 13 August 1994 he had no information about the conduct of a possible military operation; nor did he know about the taking of the applicants into custody.

The Diyarbakır Public Prosecutor attached to 2nd Tactics Air Forces Command wrote to the Office of the Eruh Public Prosecutor in order to obtain the statements of F. Ş., İ. İ., A. Ö., A. Ö., B. E., İ. Ş. and İ. İ.. The Eruh Public Prosecutor in turn wrote to the Güçlükonak District Gendarme Command in order to locate these persons.

In a letter dated 9 July 1996 the Güçlükonak District Gendarme Command stated that all these persons had left Fındık Village two years ago and had moved to Cizre . Their new addresses were unknown. By letter dated 30 July 1996 the Diyarbakır Public Prosecutor attached to 2nd Tactics Air Forces Command informed the Office of the Cizre Public Prosecutor of this development.

On 14 August 1996 the Office of the Cizre Public Prosecutor wrote to the Cizre District Security Directorate requesting that these persons be found. Attempts to locate them proved unsuccessful.

By letters dated 6 December 1996, 3 March 1997 and 12 May 1997 the Diyarbakır Public Prosecutor attached to 2nd Tactics Air Forces Command ordered the Offices of the Public Prosecutors in Eruh and Şırnak to step up their enquires in order to locate them.

B. Relevant domestic law

Criminal law and procedure

The Turkish Criminal Code makes it a criminal offence:

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

– to issue threats (Article 191),

– to subject an individual to torture or ill-treatment (Articles 243 and 245).

In respect of 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.

Generally, if the alleged author of a crime is a State official or civil servant, 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. If the offender is a member of the armed forces, he would fall under the jurisdiction of the military courts and would be tried in accordance with the provisions of Article 152 of the Military Criminal Code.

COMPLAINTS

The applicants complain of violations of Articles 2 and 5 of the Convention.

As to Article 2, the applicants refer to their relatives' unacknowledged detention by the State, which, they submit is life-threatening.

As to Article 5, the applicants complain about their relatives' unlawful detention and of not being informed of the reasons for their arrest. They allege that their relatives were not brought before a judicial authority within a reasonable time and were not able to take proceedings in order to determine the lawfulness of their detention.

THE LAW

The applicants allege that their relatives’ disappearance gives rise to violations of Articles 2 and 5 of the Convention. These provisions state to the extent relevant:

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 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:

...

(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;

...

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.”

The Government’s preliminary objections

The Government maintain that an investigation into the allegations made by İ. Ş. and İ. İ. is still pending before the Office of the Diyarbakır Public Prosecutor attached to the 7th Military Army Corps.

The Government further state that when the applicants applied to the Commission in 1996 they gave as their addresses Fındık village in the Güçlükonak district. However, the official investigations showed that the applicants had all left Fındık in 1994 or 1995 and had moved to Cizre . It proved impossible to obtain their new addresses despite the efforts made by the authorities. Although İ. Ş. and İ. İ. lodged petitions with the Office of the Public Prosecutor they never pursued them. They, like the other two applicants, left the locality and subsequently applied directly to the Commission without having exhausted domestic remedies.

The applicants aver in reply that human rights violations are common in south-east Turkey. Lodging a complaint with the authorities exposes the complainant to serious risk. Furthermore, the investigations relied on by the Government cannot be said to be effective since they were conducted by the security forces which are the subject of their allegations. In these circumstances domestic remedies must be considered ineffective.

The Government respond that if the applicants believed that domestic remedies were ineffective they should have applied to the Commission within six months of the alleged incident. Since they failed to so their applicant must be taken to be time-barred in application of Article 35 § 1 of the Convention.

The Court considers that it cannot pronounce on whether or not the applicants have failed to exhaust domestic remedies as alleged by the Government. It notes that the authorities were apprised of the applicants’ complaints and took certain steps to follow them up irrespective of the fact that the applicants left the region without leaving a forwarding address. According to the Government, the investigation into their complaints is still pending. The applicants, for their part, are critical of the manner in which their complaints have been dealt with.

The Court recalls in this respect that where the relatives of a person have an arguable claim that the latter has disappeared at the hands of the authorities, the notion of an effective remedy requires, 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 for the relatives to the investigatory procedure (see, the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, p. 1189, § 140 ). For the Court, these are matters which can only be properly addressed in the instant case on the merits.

For this reasons, the Court considers that the Government’s preliminary objection based on non-exhaustion should be joined to the merits of the applicants’ complaints.

As to the Government’s reliance on the six-months rule, the Court observes that the applicants lodged their application under the Convention on 18 March 1996. According to the Government, the domestic investigation is still pending. Having regard to the fact that no “final decision” within the meaning of Article 35 § 1 of the Convention has been reached on the applicants’ allegations, the Court considers that the admissibility of the application cannot be defeated in application of the six-month rule.

For the above reason the Court rejects the Government’s preliminary objection under this head.

Merits

The Government aver that there is no evidence that the applicants’ relatives were detained as alleged. They further dispute the applicants’ assertion that a military operation was carried out in their village on 13 August 1994.

The Government maintain that the applicants never lodged petitions with either the Şırnak Public Prosecutor or the Şırnak Gendarme Headquarters. In fact there was no gendarme division posted in Şırnak at the time, only a Şırnak Gendarme Brigade.

The Government submit that, contrary to the applicants’ assertion, the applicants’ relatives did have connections with the PKK. This is confirmed by the facts that İ. İ.’s son, İ. İ., was detained in 1988 on the grounds that he had assisted an illegal organisation and A. Ö.’s brother, A. Ö., was detained in 1988 on grounds of membership of an illegal organisation. Accordingly, it cannot be excluded that the applicants’ relatives left the village to join up with the PKK. In any event, there is no logical reason why the authorities would want to kidnap them. The Government stress that there were no eyewitnesses to support the applicants’ claim that their relatives had been flown out of the village by helicopter.

The applicants state that when lodging their petitions they did not make any distinction between Şırnak Gendarme Headquarters and Şırnak Gendarme Brigade. They were after all only ordinary villagers.

The applicants further maintain that no criminal charges were ever brought against A. Ö. and İ. İ.. In addition they state that they were eyewitnesses to the removal of their relatives by helicopter from the village on the day in question. They can produce their names on request by the Court. They contend that the authorities never took any steps to follow-up their allegation that a Captain Namık was involved in the incident.

As to their departure from Fındık Village the applicants state this was due to reasons of work. They have no fixed address and move about in search of work. They did not intentionally fail to inform the authorities of their whereabouts.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the application as a whole. The Court concludes, therefore, that 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 THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Wilhelmina Thomassen Registrar President