FIRST SECTION

DECISION [Note1]

AS TO THE ADMISSIBILITY OF

Application no. 27601/95

by Hüseyin TOĞCU

against Turkey [Note2]

The European Court of Human Rights ( First Section ) sitting on 14 September 1999 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, Judges , Mr F. Gölcüklü , Ad hoc Judge,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 May 1995 by Hüseyin Toğcu against Turkey and registered on 13 June 1995 under file no. 27601/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 5 August 1996 and the observations in reply submitted by the applicant on 5 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in 1944, and resides at Diyarbak ı r. He is represented before the Commission by Professor Kevin Boyle and Ms Françoise Hampson , both university teachers at the University of Essex, England.

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

A. Particular circumstances of the case

As the facts are disputed between the parties, the facts as submitted by each party are set out separately.

1. The applicant states that the following occurred.

The applicant's son, Ender Toğcu , was the manager of the Sento Hotel and the Arzu Club in Diyarbakır . He had no relations with the PKK or other similar organisations.

On or about 29 November 1994 the wife of Ender Toğcu , was giving birth in the Diyarbakır Hospital. At about 3 p.m., Ender Toğcu left his older brother Ali Toğcu in order to visit his wife in hospital. However, Ender never arrived at the hospital and he has never been seen since.

On the same day, at about 10.30 p.m., a group of seven or eight plain clothes police officers came to the applicant's house and, without warning or explanation, beat the applicant and his younger son. The police officers asked where Ender ToÄŸcu was. Being terrified, the applicant lied when he told them that Ender had gone to Kayseri three days earlier. The police officers then told the applicant that Ender was in fact in their hands and that they would give his body to the applicant in three days.

After the police officers had left the applicant's house, they went to a neighbour of the applicant to ask if he knew the whereabouts of Ender ToÄŸcu . When the neighbour replied that he did not know Ender or where he was, the police replied that he had failed to report for military service and that they were looking for him. However, Ender had already done his military service.

The same police officers subsequently went to the house of Ali ToÄŸcu and asked him also if he knew the whereabouts of Ender . Ali replied that Ender had left at about 3 p.m. and that he had not seen him since. The police officers then arrested Ali and brought him to the applicant's house. They told the applicant that there was a firearm in his house and asked him to surrender it to them. Then they went into the applicant's firewood storehouse and came out with a firearm. The police officer told the applicant that Ender had told them where the firearm was. The police officers drew up a report and told the applicant to sign it. They left the applicant's house at about midnight.

On 30 November 1994, in a cafeteria, police officers of the Çarşı police station asked Ali Toğcu again whether he knew where Ender was. After Ali had replied that he did not know, the police officers told him that the police had caught Ender and that he had a list on him with prices of items like walkie-talkies and batteries. The police officers then arrested Ali and placed him in detention.

While in detention, Ali ToÄŸcu clearly heard the voice and screams of his brother Ender . Ali ToÄŸcu was released after having spent three days in detention.

On the day Ali Toğcu was released from custody , he made verbal inquiries about his brother Ender at the Çarşı Police Station. The police officers there replied that his brother was in their hands and assured Ali that Ender would be released after interrogation.

At some unspecified point in time, Ali ToÄŸcu made further verbal inquiries about Ender with the Chief Commissioner at the Homicide Department. At that occasion Ali had taken with him a photograph of Ender ToÄŸcu , a photocopy of his identity card and the applicant's private telephone number. These inquiries remained without any results.

The applicant himself filed petitions to the Diyarbakır State Security Court every month. However, on each such occasion the court officials wrote a note at the foot of the petition stating that the name of Ender Toğcu did not figure in their records.

On 6 April 1995 the applicant’s wife, Saliye Toğcu , made a written petition to the Office of the public prosecutor at the State Security Court of Diyarbakır . In this petition she stated that her son Ender had been taken into custody on 29 November 1994 in central Diyarbakır and that plain clothes policemen, who had conducted a search in the family’s house, had told them that Ender was in their hands. She further stated in her petition that, since then, she had received no news from her son and that she did not know where he was.

At the foot of Saliye Toğcu’s petition to the public prosecutor it is noted in a different handwriting that the name of Ender Toğcu was not found in the preliminary apprehension records.

2. The Government state as follows.

On 4 July 1995, in the context of an investigation into involvement of the applicant and his son Ali ToÄŸcu with illegal organisations, the applicant and Ali were arrested and detained after their respective homes had been searched. Nothing was found in or taken from these homes by the police. The applicant and his son Ali were released on 8 July 1995 for lack of evidence of any relations with any illegal organisations.

On 1 February 1996 the Diyarbakır Police Headquarters sent a letter to the Office of the Chief public prosecutor of Diyarbakır , which in so far as relevant states:

“ In the course of an investigation concerning illegal organisations conducted by our department, Hüseyin and Ali Toğcu have been arrested on 04.07.1995. In this investigation no clear evidence has been found that they do have any connections with illegal organisations. They were further not listed in any list of wanted persons. After having been provided with their medical reports on 08.07.1995, they were released in accordance with a verbal order of the Office of the public prosecutor at the State Security Court. There is no record concerning regarding Ender Toğcu and the above mentioned [persons, Ali and Hüseyin ] were not detained on 29.10.1994. … The above mentioned Hüseyin and Ali Toğcu were taken into custody on 04.07.1995 and copies of the documents concerning their release on 08.07.1995 are attached to this letter.”

By a letter of 25 June 1996 the Diyarbakır public prosecutor nr . 21761, referring to the application filed by Hüseyin Toğcu with the European Commission of Human Rights, inquired with the Office of the public prosecutor at the Diyarbakır State Security Court whether there was a preliminary investigation file registered at this Office concerning Ender Toğcu . The Diyarbakır public prosecutor also asked whether the applicant’s son had been taken into custody and if he had any relations with PKK or any other similar illegal organisations.

On 27 June 1996 the public prosecutor at the Diyarbakır State Security Court replied that there had been no preliminary investigation record concerning Ender Toğcu .

On 10 July 1996 the public prosecutor nr . 21761 ordered the Diyarbakır Public Order Department to ensure the applicant’s appearance at the Office of the public prosecutor. On 19 July 1996 the applicant gave a statement to the public prosecutor nr . 21761, which reads as follows:

“I have filed an application with the European Commission of Human Rights concerning the disappearance of my son, Ö nder [1] Toğcu , in 1994. On 29 November 1994 I was taken into custody together with my sons Ö nder and Ali by the anti-terror branch. I remained in custody for one week. Ali was taken into custody twice. One time he remained for three days and the other one he remained for one week in custody. The policemen, alleging that Ö nder had a gun, came to our house. This gun was given to them in the firewood storehouse. My son Ö nder could not be found after he had had been taken into custody on 29 November 1994. We could not obtain any information about his whereabouts although we did apply with the Diyarbakır State Security Court Prosecutor’s Office, the Anti-Terror Branch and other authorities. My son Ö nder is still missing. My son was taken into custody on charges of membership of the illegal PKK organisation. Ö nder’s wife was in the hospital giving birth. When he returned back home after his visit to the hospital, he was taken by plain-clothes policemen. They said that we could find his body in Fiskaya in three days. Önder Toğcu is 26 years old and in a religious ceremony has married Güler Toğcu . He has one daughter. The Anti-Terror Branch did not accept that my son has been taken into custody. I am worried about my son’s life. Even though we applied to many authorities, we obtained no results. I applied to the Human Rights Association. They have taken my statement and that statement is correct. In relation to the disappearance of my son and his being taken to custody, I wish to file a complaint against the Anti-Terror Branch. I could not find my son although I have conducted a search in prisons and have placed announcements in the newspapers. The Anti-Terror Branch alleges that my son has gone to the mountains. If this allegation is true, let’s make a search in the mountains. I want the body of my son to be given to me.”

On 6 November 1996, in accordance with Article 164 of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ; hereinafter referred to as “CCP”), the Diyarbakır Chief public prosecutor Abdullah Kocatepe issued a decision not to take any proceedings ( takipsizlik kararı ) against the Anti-Terror Branch on basis of the applicant’s complaint about the disappearance of his son Ender . In this decision the public prosecutor referred to the application filed by the applicant with the European Commission of Human Rights. The reason stated in his decision not to take any proceedings was that the Anti-Terror Branch had informed him on 16 October 1996 that the applicant’s son Ender had not been taken into custody on 29 November 1994.

B. Relevant domestic law and practice

As only limited details have been submitted on domestic legal provisions which have a bearing on the circumstances of this case, the Court has had regard to the overview of domestic law derived from previous submissions in other cases, in particular the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1169-70, §§ 56-62, Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1512-13, §§ 25-29, and Çakıcı v. Turkey judgment of 8 July 1999.

a. State of emergency

Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan ). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.

The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”

b. Constitutional provisions on 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 administration shall be liable to make reparation for any damage caused by its own acts and measures.”

This 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 liability is of an absolute, objective nature, based on 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.

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

c. Criminal law and procedure

The Turkish Criminal Code ( Türk Ceza Kanunu ) 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);

– to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 CCP, with the public prosecutor or the local administrative authorities. 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).

A 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 (Article 164 CCP).

Insofar as a criminal complaint has been lodged, a complainant may file an appeal with Assize Court ( Ağır Ceza Mahkemesi ) 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).

d. Civil-law provisions

Any illegal act by police officers or other 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. Pursuant to Article 41 of the Code of Obligations ( Borçlar Kanunu ), an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47.

e. Impact of Decree no. 285

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey.

The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § i , provides that all security forces under the command of the regional governor shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces committed in the context of the exercise of official duties must issue a decision of lack of jurisdiction ( görevsizlik kararı ) and transfer the case to the District Administrative Council ( İlçe İdare Kurulu ). These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that Ender ToÄŸcu has been secretly detained by the agents of the State. He further claims under Article 2 of a lack of any effective system for ensuring protection of the right to life in domestic law.

2. The applicant complains under Article 3 of the Convention that his inability to discover what has happened to his son and the discrimination he suffered on grounds of race or ethnic origin, in relation to both himself and his s on, has caused him agony amounting to inhuman treatment.

3. The applicant complains under Article 5 of the Convention of his son’s apparent unlawful detention, of the absence of any information as to the reasons for his son’s detention. He further complains that his son has not been brought before a judicial authority within a reasonable time and that he or his son have not been able to bring proceedings to determine the unlawfulness of his son’s detention.

4. The applicant complains under Article 13 of the Convention of the lack of any independent national authority before which the complaints under the Convention can be brought with any prospect of success.

5. The applicant complains under Article 14 of the Convention in conjunction with Articles 2, 3 and 5 of an administrative practice of discrimination on grounds of race or ethnic origin.

6. The applicant finally complains under Article 18 of the Convention that the violations of his rights under the Convention complained of are not designed to secure the ends permitted under the Convention.

PROCEDURE

The application was introduced on 25 May 1995 and registered on 13 June 1995.

On 3 December 1995 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 5 August 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 September 1996.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains of the disappearance of his son. He invokes Article 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment), Article 5 (the right to liberty and security), Article 13 (the right to an effective remedy for Convention breaches) and Article 14 (prohibition of discrimination) of the Convention. The applicant also relies on Article 18 (limitation on use or restrictions on rights) of the Convention.

Article 35 § 1 of the Convention

The parties have not raised any arguments relating to the requirements referred to in Article 35 § 1 of the Convention. The Government have not contested that the applicant has satisfied the exhaustion of domestic remedies requirement set out in Article 35 § 1 of the Convention.

As regards the merits

The Government submit that the applicant’s allegations are not supported by the facts of the case. Nobody has in fact seen the applicant’s son being apprehended by the police. Moreover, the custody records of the Çarşı Police Station between 15 November 1994 and 15 December 1994 and custody records of the Diyarbakır Anti-Terror branch between 27 November 1994 and 1 December 1994 indicate that Ender Toğcu was not detained there.

The Government explain that any person detained is always registered in the detention centre registration book. This has become a strict practice in general and especially in the south-eastern part of Turkey and also in Diyarbakır as allegations concerning disappearance during custody have been the main subject of terrorist propaganda in recent years.

According to the Government it is unlikely that police officers would have told the applicant that his son was “in their hands” and “we are going to hand his body to you in three days…” and thus declare the acceptance of a crime. According to the Government it cannot be excluded that the aim of the application is simply to dishonour the security forces dealing with terrorists and terrorism and that most disappearance cases in South-east Turkey turn out to be the result of intentional joining of the PKK. The Government further submit that, in July 1995, both the applicant and his son Ali have been the object of an investigation into possible links with illegal organisations in the course of which they have been detained and their respective homes searched.

The applicant maintains his version of events and submits not to understand the Government’s argument that his son Ali was not detained on 29 or 30 October 1994 and could therefore not have heard the screams of his brother Ender , since Ali was not detained on these dates but on 30 November 1994.

The applicant submits that the Government appears to concede that nothing whatever has been done by the authorities to investigate the disappearance of Ender or to respond to the applicant’s petitions to the Office of the public prosecutor at the Diyarbakır State Security Court. The applicant argues that this constitutes an indication of the Government’s complicity or acquiescence in the disappearance of his son Ender . He further refutes the Government’s indirect and fully unsubstantiated allegation that Ender would have joined the PKK.

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, unanimously,

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

Michael O’Boyle Elisabeth Palm

    Registrar     President

[1] In this statement the applicant’s son name is spelled “ Ö nder ”.

[Note1] Do not forget to block text with Alt+B in order to avoid that the information in the highlighted zones disappears.

[Note2] First letter in capital letters plus the article according to normal speech.