FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28299/95

by Nesime HARAN

against Turkey

The European Court of Human Rights ( First Section) sitting on 22 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson ,

Mr B. Zupančič ,

Mr T. Pantiru ,

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 22 June 1995 by Nesime Haran against Turkey and registered on 24 August 1995 under file no. 28229/95;

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 30 September 1996 and the observations in reply submitted by the applicant on 29 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national of Kurdish origin, born in 1971 and living at Arikli village in Lice in Turkey. She is the wife of Ihsan Haran , who disappeared in Diyarbakir in Turkey on 24 December 1994. She is represented before the Court by Professor Kevin Boyle and Ms. Francoise Hampson , both of the University of Essex, England.

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

Sometime prior to May 1994 a brother and a paternal cousin of the applicant joined the PKK. At that time the applicant and Ihsan Haran approached the Lice Prosecutor’s Office and told the prosecutor that they were not in the least responsible for anything the brother and cousin did and that the brother and cousin had become involved in the PKK without the knowledge of the applicant or Ihsan Haran . The prosecutor said he did not intend to open any kind of case against the applicant or Ihsan Haran because of these events.

In any event, when soldiers would come to Arikli village, where the applicant and her husband lived, Ihsan Haran would go to the forest and hide. He would return to work only after the soldiers had left.

On 12 May 1994 security forces came to Arikli . They collected the villagers into the village square and set all the houses on fire. The applicant and her husband were forced to leave the village with their children Cigerxwun (five years old), Azad (four years old) and Bermal (11 months old) and travel to Diyarbakir where they stayed with relatives.

After some time Ihsan Haran found work in the construction business and the family rented a house.

When Ihsan Haran ran out of work in Diyarbakir , he went to Istanbul. After a while he returned to Diyarbakir to work on the construction of the Diyarbakir underground market. He worked there for eight days.

On 24 December 1994 he left home as usual to go to work. However, he did not return. Three days passed. The applicant and other members of the family did not find this unusual because, if there was extra work, Ihsan Haran would remain at the workplace and not return home.

On 27 December 1994 another villager from Arikli , Fahri Hazar , aged 40, came to the applicant's house and told her that on the morning of 24 December 1994 an identification check was carried out by uniformed police officers at the site where Ihsan Haran had been working. While checking Ihsan Haran’s identification document, they started arguing amongst themselves. This lasted for some 10 minutes and then the police officers took Ihsan Haran away.

Being convinced that her husband was in the custody of the Turkish security forces the applicant went to the State Security Court with a petition seeking to ascertain her husband's whereabouts. However, the police outside the building prevented her and her family from seeing the prosecutor. The applicant and her family continued trying to petition the prosecutor for a month but were obstructed by the police.

The applicant then went to various prisons to find out whether anyone had seen the applicant in custody. One person, who has asked not to be named, said that he saw Ihsan Haran in custody. At present this person is in Dormitory 31 at Diyarbakir E-type prison.

On 1 February 1995 the brothers of Ihsan Haran , Abdullah (20 years old) and Seythan (15 years old), as well as his paternal cousin were taken into custody. Until today nothing has been learnt of the whereabouts of Ihsan Haran .

On 22 May 1996 the General Directorate of Security of the Ministry of Foreign Affairs informed the Ministry of Foreign Affairs that an investigation had been conducted into the applicant’s allegations before the Commission. They found no record that Ihsan Haran had been taken into custody between 24 December 1994 and 1 February 1995. Ihsan Haran was found to have no criminal record.

COMPLAINTS

The applicant complains of violations of Articles 2, 3, 5, 13, 14 and 18 of the Convention.

As to Article 2, the applicant states that there is a substantial risk that her husband has been secretly detained by the agents of the State, and there exists a high incidence of deaths in custody. She also complains of the lack of adequate protection of the right to life in domestic law.

As to Article 3, the applicant refers to her anguish arising out of her inability to discover what has happened to her husband.

As to Article 5, the applicant complains of her husband's unlawful detention, of not being informed of the reasons for his arrest, of her husband not being brought before a judicial authority within a reasonable time and of not being able to bring proceedings to determine the lawfulness of his detention.

As to Article 13, the applicant refers to the lack of an independent national authority before which these complaints can be brought with some prospect of success.

As to Article 14, in conjunction with Articles 2, 3 and 5, the applicant refers to an administrative practice of discrimination on grounds of ethnic origin.

As to Article 18, the applicant complains that the above interference in the exercise of the Convention rights is not designed to secure any of the aims permitted under the Convention.

PROCEDURE

The application was introduced on 22 June 1995 and registered on 24 August 1995.

On 26 February 1996, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 30 September 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 29 November 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 violations of Articles 2, 3, 5, 13, 14 and 18 of the Convention in connection with the disappearance of her husband after he had been taken into custody. The relevant parts of these provisions provide as follows:

Article 2 of the Convention provides:

"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.

..."

Article 3 provides:

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

Article 5 provides:

"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;

...

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;

..."

Article 13 provides:

"Everyone whose rights and freedoms as set forth in this 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 provides:

"The enjoyment of the rights and freedoms set forth in this 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 provides:

"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 respondent Government argue that the applicant has not exhausted domestic remedies. They submit that she could have had criminal proceedings instituted against the military or police authorities which would have been accountable for her husband’s detention in accordance with domestic law. She could have also lodged a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents. Under Turkish law the civil action does not depend on the outcome of the criminal proceedings and the procedural requirements are less strict. Alternatively, the applicant could have instituted administrative proceedings under Article 125 of the Constitution and under law No. 2935 and legislative decree No. 430. The Government submit that the applicant has not shown that there exists an administrative practice because of which she would have been dispensed from exhausting domestic remedies.

The Government further submit that, even assuming that domestic remedies were not effective, the applicant did not complain about the events of 12 May 1994 within the six-month period of Article 35 § 1 of the Convention.

As regards the substance of the applicant’s complaints, the Government submit that the applicant has submitted no evidence in support of her allegations. Her husband’s disappearance was not brought to the attention of the authorities at the time. The latter were first informed of her complaints when the application was communicated to them by the Commission. He General Directorate of Security of the Ministry of Interior Affairs conducted an inquiry which established that the applicant was not in custody on 24 December 1994. The Government deny the existence of discrimination against one or the other part of the Turkish population.

The applicant contends that her complaints concern exclusively the disappearance of her husband on 24 December 1994. The complaints concerning the destruction of Arikli village form the basis of application No. 25754/94 which was declared admissible on 26 February 1996. It follows that the applicant has not been submitted outside the six-month period of Article 35 § 1 of the Convention.

Moreover, the applicant submits that domestic remedies are illusory, inadequate and ineffective in this kind of case. In any event, the applicant denies that she has not tried to exhaust domestic remedies. For a month she had been trying unsuccessfully to petition the prosecutor. Given the nature of her complaints, this was the appropriate remedy for her to exhaust. It is a fallacy to talk of seeking a civil remedy where there has been no investigation to determine the facts of her husband’s disappearance. Moreover, the primary remedy in this type of situation is for the applicant to be told of the fate of her husband. Monetary compensation can only be appropriate in addition to this as recognition of her suffering. In any event, after the Commission communicated the case to the Turkish authorities, the latter issued a denial without carrying out an effective investigation. There is, therefore, no reason to believe that any further attempts within Turkey to exhaust domestic remedies for a complaint of this nature would have elicited a more pro-active response from the authorities.             

As regards the substance of the complaints, the applicant submits that her allegations are borne out by eyewitness testimony. She also refers to the fact that her husband’s two brothers were taken into custody, something about which the Government do not make nay comments. No weight should be attached to the letter of 22 May 1996 by the General Directorate of Security of the Ministry of Interior Affairs because the inquiry was very perfunctory. Moreover, there exist other cases of disappeared persons in which the Court found against Turkey, although the Government had denied that the persons concerned had been taken into custody.

The Court recalls that in a number of cases involving allegations of murder by security forces it held that the applicants were not required to bring the same civil and administrative remedies as those relied on by the Government in the present case for the following reasons. In a civil action for damages it was necessary to identify the person believed to have committed the tort and those responsible for the acts complained of remained unknown. The administrative action under Article 125 of the Constitution was based on strict liability of the State and in cases of alleged murder the Convention required that those responsible should be identified and punished (see Eur. Court HR, Ogur v. Turkey judgment of 20 May 1999, to be published in Reports of Judgments and Decisions, § 66; Yasa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2432, § 75). The Court considers that the same conclusions should be reached in the present case which concerns the alleged disappearance of a person after he had been taken into police custody. It follows that the applicant was not required to institute civil proceedings for damages or administrative proceedings under Article 125 of the Constitution.

On the contrary, the Court considers that a complaint to the prosecutor could in principle provide redress for the kind of violations alleged by the applicant. The Court notes in this connection that the Government do not dispute the applicant’s allegation that she repeatedly tried to lodge a petition with the prosecutor but was prevented by the police from seeing him. It is true that the applicant could have lodged such a petition in writing. However, the Court recalls that, when the application was communicated to the respondent Government, the inquiry that was conducted was limited to checking custody and criminal records, although the applicant had referred to two witnesses. The Court considers that the authorities’ reaction to the present case is not to be seen in isolation but in the context of their general reluctance to deal with allegations of involvement of security forces and other State agents in unlawful conduct in particular in the south-east of Turkey (see, inter alia , Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, 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, op. cit. , p. 2442, § 115; Ogur v. Turkey judgment of 20 May 1999, op. cit. , § 93). Having regard to all the above circumstances, the Court considers that the applicant could have reasonably believed that lodging a written petition with the prosecutor would not have provided her with an effective remedy in respect of her complaints concerning the disappearance of her husband after he had been taken into police custody. It follows that the applicant can be dispensed from exhausting this remedy and that she has complied with the obligation to exhaust domestic remedies under Article 35 § 1 of the Convention.

The Court also notes that the applicant was first apprised of her husband’s disappearance on 27 December 1994 and that she had been trying to see the prosecutor for a month after that. The application was lodged before the Commission on 22 June 1995. It follows that the six-month rule in Article 35 § 1 has been respected.

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, unanimously,

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

Michael O’Boyle Elisabeth Palm Registrar President