AS TO THE ADMISSIBILITY OF
Application No. 23954/94
by 1. Mehmet Emin AKDENIZ
2. Sabri TUTUS
3. Sabri AVAR
4. Keles SIMSEK
5. Seyithan ATALA
6. Aydin DEMIR
7. Kemal TAS
8. Suleyman YAMUK
9. Ramazan YERLIKAYA
against Turkey
The European Commission of Human Rights sitting in private on
3 April 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 April 1994 by
1. Mehmet Emin AKDENIZ, 2. Sabri TUTUS, 3. Sabri AVAR, 4. Keles SIMSEK,
5. Seyithan ATALA, 6. Aydin DEMIR, 7. Kemal TAS , 8. Suleyman YAMUK,
and 9. Ramazan YERLIKAYA, against Turkey and registered on 25 April
1994 under file No. 23954/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations and information submitted by the respondent
Government on 4 December 1994 and 25 January 1995 and the
information and observations in reply submitted by the applicants
on 13 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Mehmet Emin AKDENIZ, a Turkish citizen of
Kurdish origin, was born in 1938 and resides at Kulp. He complains to
the Commission on his own behalf and on behalf of his brother M. Salih
AKDENIZ, aged 70, who was mayor of Inkaya, and his nephew Celil
Aydodgu, aged 60.
The second applicant, Sabri TUTUS, a Turkish citizen of Kurdish
origin, was born in 1976 and resides at Diyarbakir. He complains to the
Commission on his own behalf and on behalf of his father Behcet TUTUS,
aged 44.
The third applicant, Sabri AVAR, a Turkish citizen of Kurdish
origin, was born in 1950 and resides at Mus. He complains to the
Commission on his own behalf and on behalf of his son M. Serif AVAR,
aged 24, and his brother Hasan AVAR, aged 42.
The fourth applicant, Keles SIMSEK, a Turkish citizen of Kurdish
origin, was born in 1950 and resides at Mersin. He complains to the
Commission on his own behalf and on behalf of his brother Bahri SIMSEK,
aged 40.
The fifth applicant, Seyithan ATALA, a Turkish citizen of Kurdish
origin, was born in 1970 and resides at Diyarbakir. He complains to the
Commission on his own behalf and on behalf of his brother M. Sah ATALA,
aged 24.
The sixth applicant Aydin DEMIR, a Turkish citizen of Kurdish
origin, was born in 1968 and resides at Diyarbakir. He complains to the
Commission on his own behalf and on behalf of his brother Turan DEMIR,
aged 27.
The seventh applicant, Kemal TAS, a Turkish citizen of Kurdish
origin, was born in 1939 and resides at Kulp. He complains to the
Commission on his own behalf and on behalf of his son Umit TAS, aged
16.
The eighth applicant, Suleyman YAMUK, a Turkish citizen of
Kurdish origin, was born in 1955 and resides at Mus. He complains to
the Commission on his own behalf and on behalf of his elder brother
Abdo YAMUK.
The ninth applicant, Ramazan YERLIKAYA, a Turkish citizen of
Kurdish origin, was born in 1967 and resides at Mus. He complains to
the Commission on his own behalf and on behalf of his brother Nusreddin
YERLIKAYA.
The above-mentioned eleven persons on whose behalf the
application is brought have all disappeared after they had been
arrested and detained in the circumstances described below.
The applicants are represented before the Commission by Professor
Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex,
England.
The facts as submitted by the parties may be summarised as
follows:
A. The particular circumstances of the case
The applicants give the following account of events.
In October 1993, there was a military operation with 10.000-
15.000 soldiers and village guards in the Kulp-Mus-Bingöl triangle,
Diyarbakir province, South East Turkey, which centred on the village
of Alaca and surrounding hamlets. It is assumed that the military
operation was directed at the search for both members and supporters
of a PKK armed group. The operation included the destruction of the
village of Alaca and its hamlets as well as the expulsion of its
inhabitants, most of whom left for the city of Diyarbakir or the towns
of Kulp and Mus. Witnesses state that military planes were involved and
that bombs were dropped that killed livestock and started forest fires.
From 9 October 1993, a number of male villagers, possibly fifty,
were arrested at different places and at different times and brought
to a temporary open air detention site outside Gundik hamlet, Alaca
village, Kulp district, Diyarbakir province. The eleven missing persons
at issue in the present case were among those brought there. Several
of the applicants or their relatives were also among those arrested and
brought to the site, or they visited the camp later. They can all
testify that the eleven persons now missing were held with their hands
tied behind their backs by rope throughout their detention at the site.
All the prisoners were interrogated continuously about their knowledge
of terrorists.
After a period of about 10 days the bulk of those arrested were
released. The eleven missing men, whose ages ranged from 16 to 70, were
taken at different times by military helicopter from the temporary open
detention camp to an unknown destination on or about 19 October 1993.
The eleven missing persons have not been seen since.
The applicants in their search for information about their
missing relatives have not received any explanation as to what happened
to them. Despite the efforts of the applicants since the disappearance
of their relatives nothing has been learned from the authorities about
the whereabouts of the missing men.
The facts based on the statements of each of the applicants and
witnesses are as follows :
The applicant Mehmet Emin Akdeniz was in Diyarbakir, while his
brother M. Salih Akdeniz and his nephew Celil Aydogdu were taken into
custody by soldiers who came to the Sen pastures for an operation. The
applicant went to Kulp when he learned of the incident. He did not go
to the village as he was afraid to be caught by the soldiers. When he
learned of the disappearance of his brother with ten other people after
they had been taken to an unknown place by helicopter, he went back to
Diyarbakir and he submitted a petition to the prosecuting authority
asking for his brother's whereabouts. The reply on 5 November 1993 was
that his brother was not in custody. On 12 November 1993, the applicant
applied to the chief prosecution at Bingöl but was informed that there
was nothing in the records. The applicant went to a friend who works
in Diyarbakir Gendarme Command and who is a close friend of a colonel,
and requested him to ask for his brother. As a result of the questions
his friend put to the colonel, they were informed that his brother was
not in the hands of the soldiers. On 24 November 1993, the applicant
went to Ankara and met the State Minister responsible for Human Rights,
who telephoned to the State Emergency Regional Governorship, gave the
names of the eleven people and asked about them. The answer of the
governor was that those people were not at any of the units connected
to him. Afterwards, the applicant submitted petitions to the State
Minister, the Prime Minister and the Minister of the Interior, from
whom no reply was received. After his return to Diyarbakir, he and the
relatives of the other missing men met the Assistant State of Emergency
Regional Governor and submitted a petition to him on 30 November 1993.
No reply to that petition has been received. On 14 December 1993, he
and another relative applied to the prosecution at the State Security
Court at Kayseri on behalf of four of the missing men without result.
The applicant Sabri Tutus states that, on 9 October 1993, his
father Behcet Tutus was arrested together with his uncle Selahattin
Tutus. His father had 20.000.000 Turkish Liras cash on him when he was
arrested. His uncle was released after three days during which he had
been held in the detention camp in Alaca village. His father remained
in detention, and according to his uncle's statements, his father's
money and a bank book were taken by a First Lieutenant. His father was
taken to an unknown place after he had been held ten days in custody.
The applicant Sabri Avar was informed about the operation, but
he was afraid to go to the village. He went there after ten days and
learned from the villagers that, on 9 October 1993, his brother and his
son had been taken into custody with some other people as a result of
the operation. They were held for about ten days in the village where
villagers brought them food. Eleven of them were taken to an unknown
place by helicopter. On 22 November 1993, he addressed a petition to
the chief prosecution at Kulp and on 27 December 1993, to the Kulp
Governorship, but without result.
The applicant Keles Simsek, who has lived in Mersin for years,
was not in the village during the incident. After having had a phone
call from a relative from Mus informing him about the operation and the
burning of the village, he came to Kulp, where he learned that his
brother was in custody. When he went to the village five or six days
after his brother had been arrested, he saw that the village had been
burnt down. He learned that his brother was being held and got
permission to see him. The prisoners were being held in an open space,
and their hands were not bound while he was there. They said to the
applicant, "when someone comes to see us they untie our hands, and when
they go, they tie them up again". He was able to speak to his brother
for about three hours. His brother told him that when they were first
taken into custody in the village they were tortured. The applicant
applied to the State Security Chief Prosecution in Diyarbakir on
12 December 1993 and then was told that they had no information about
his brother.
The applicant Seyithan Atala states that, on 9 October 1993, his
brother M. Sah Atala was taken into custody as a result of an operation
carried out in the region, in which about 15.000 soldiers took part.
Since the applicant was in Diyarbakir during the incident, he had the
information from the villagers who told him that his brother had been
taken to an unknown place at the end of the operation. While his
brother was in custody, his family brought him food and clothing and
talked to him. He applied to the Kulp State Prosecutor, to the District
Governor, to the Diyarbakir State Security Court Prosecution, all
without any result. The Kulp District Governor told him that the
operation had been directed by Brigadier General Yavuz Pasa, and the
orders had been given directly by the Chief of General Staff Dogan
Gures. He sent the applicant to a captain, a Gendarme Commander, who
told him that he did not know anything. The applicant believes that he
has used all the legal channels in Turkey.
The applicant Aydin Demir was at Mus when, on 9 October 1993, his
elder brother Turan Demir was taken into custody and the whole village
was burnt. When he returned to the village after three days he learned
about the incident and he was informed that his family had brought food
and cigarettes to his brother during nine days when his brother had
been held in custody. On the ninth day, his mother had seen a
helicopter which took his brother and the other ten people away. He
states that he applied to the Kulp Gendarme Command, the Diyarbakir
State Security Court Chief Prosecutor, the Diyarbakir Governorship, the
State of Emergency Regional Governorship and Kayseri, Bolu and Bingöl
Gendarme Commands, but no information was received. Hüsnü Demir, father
of the applicant, made a written petition to the prosecution at the
Diyarbakir State Security Court concerning the disappearances on
17 December 1993 and was orally informed that no records had been
discovered to the effect that Turan Demir and the ten others were in
custody.
The applicant Kemal Tas states that, some time before the
operation in Alaca village, his son Umit had gone to Kulp with 7
million Turkish liras to pay a tobacco loan, and that he was taken into
custody at Kulp by the police because of this money found on him. The
applicant's son Mehmet Tahir brought food to Umit when he was in
custody at Kulp. Once when Mehmet Tahir again went to give food to
Umit, he was told that Umit had been released. But he has not been seen
since. The applicant learned that the police had handed him over to
soldiers. During the operation, he was brought to Alaca village. The
applicant applied to the Security authorities and the District
Governor, but neither of them admitted that they held his brother in
custody.
The applicant Suleyman Yamuk was in Mus at the time of the
incident. He came to the village five days after his brother had been
detained. The village was being set on fire at that time. The soldiers
arrested the applicant and took him by helicopter to Mus where he was
held in custody for seven days. After his release, he tried to find his
brother who had been arrested by the soldiers on 9 October 1993 and had
been held in the village for some time until he was taken to an unknown
destination by helicopter. He was unable to find any trace of his
brother. He applied on 21 October 1993 to the State prosecution at
Bingöl without result.
The applicant Ramazan Yerlikaya and his brother Nusreddin were
arrested on the same day but in different places and at different
times. The applicant was taken to his village and was held there bound
by soldiers for nine days. From there he was taken to Mus Security
Directorate, where he was released after eight days. His other brothers
Abdulrahim and Medeni Yerlikaya and his relative Ali Yerlikaya were
taken into custody together with his brother Nusreddin in Alaca village
from where his brother Nusreddin was taken to an unknown place by
helicopter. Medeni and Ali were released with the others after nine
days.
According to the witness statement of Ali Yerlikaya relating to
the eleven missing men, about 30 soldiers came to his house at 09.00
on the day of the incident. The soldiers searched the house and, then,
took him away. Later, they brought Bahri Simsek, M. Sah Atala and Umit
Tas to join him. On the second day, Nusreddin Yerlikaya, Hasan Avar and
Abdo Yamuk were also brought there. They were asked whether they had
seen any terrorists and whether they knew where they were. After they
had answered that they had not seen any, their hands were bound. On the
third day he and others were put in a helicopter which departed for
Gundik hamlet. There they were held in an open space with their hands
tied. On the following day, Abdo Yamuk was taken away from the others
to another place from where three shots were heard. Abdo Yamuk was
brought back to the others two days later. He had been shot in his
right foot which was bandaged. Afterwards, he was put in a helicopter
and taken to the forest around Kayalisu opposite the Gundik hamlet
where, one day earlier, Nusreddin Yerlikaya and Behcet Tutus had been
sent. The following day, Umit Tas was taken to the Sen pasture. Two
days later, Ali Yerlikaya was released. He was given his identity card
and told to return to his village, but not to stay there. The houses
and the possessions had been burnt.
According to the witness statement of Abdurrahman Yerlikaya
relating to the eleven missing men, he was taken into custody during
the operation which was carried out in his region by about 15.000
soldiers. He was taken to Piric hamlet. After being held there for
three days, he was taken with his brothers Medeni and Nusreddin
Yerlikaya, Ali Yerlikaya, Bahri Simsek, M. Sah Atala, Umit Tas, Hasan
Avar and Abdo Yamuk to Gundik hamlet by helicopter. They were asked
whether or not they had seen the terrorists. They met Mehmet Salih
Akdeniz, Behcet Tutus, M. Serif Avar, Turan Demir and Celil Aydogdu,
who were held in an open space with their hands bound, at the place
where they were brought. Abdo Yamuk was taken away from the others,
afterwards three gunshots were heard, and two days later he was seen
with his right leg bandaged. First, Nusreddin Yerlikaya and Behcet
Tutus were taken by helicopter to the forested area near Kayalisu.
Later, Abdo Yamuk and on the following day Umit were taken there. Two
days later he, Ali and Medeni were given their identity cards and were
released and told to go back to their village but then to leave it
immediately.
According to the witness statement of Selahattin Tutus relating
to the custody of Behcet Tutus, he and his brother Behcet Tutus were
coming back from Mus where they had gone to get money for animals
which they had sold. They were stopped by ten soldiers at the entrance
of the village and arrested. They were brought to a place where there
were more soldiers together with two people in masks. These two people
and soldiers in uniforms pointed to Behcet after looking at their
identity cards. The soldiers tied the hands of Behcet Tutus under the
order of the First Sergeant, and started to beat him with sticks and
fists. In the meantime they were saying "show us where the terrorists
are". Behcet said that he did not know anybody. Behcet was beaten for
about two hours. They were held in the village with 49 people, of whom
eleven were bound like Behcet. The hands of the others were free.
During that night, the men whose hands were not bound were told to go
to the houses in the village but to come back the following morning.
Those whose hands were bound were kept in the open air. This continued
for two days, and the eleven men were fed out of the hands of the
soldiers. When the soldiers untied the hands of Behcet so as to permit
him to go to the toilet, he attempted to give the 20.000.000 Turkish
liras to Selahattin. A soldier saw the money and told the First
Sergeant about it. The First Sergeant took the money and put it into
his pocket. On the third day, 32 people, including the witness, were
brought out of Kulp to the Mus area by helicopter. They were held there
two days without having any food and water. Then they were released
except six of them who were released three days later. When they
arrived at their village, the village had been burnt.
According to the witness statement of Mehmet Ilbey relating to
the eleven missing men, he was resident at Gurnik hamlet, Alaca
village, at the time of the incident. On 13 October 1993, there was an
identity check at the entrance of the village by the soldiers. The
soldiers took Mehmet Ilbey past a man with a cloth mask over his face.
The masked man, with his walkie-talkie, said, "Commander, I have not
seen this man". Then, he was taken to the place where about 50
villagers were held together. Eleven of them were M. Salih Akdeniz,
Celil Aydogdu, Behcet Tutus, Turan Demir, Hasan Avar, M. Serif Avar,
M. Sah Atala, Bahri Simsek, Abdo Yamuk, Nusreddin Yerlikaya and Umit
Tas. Their hands were tied, whereas the hands of the others were free.
On the third day, he was released but told to leave the area. He was
also told that they were going to burn the houses.
The applicants appealed to Amnesty International through the
Human Rights Association. Amnesty international appealed to the Turkish
Government and, in April 1994, published a report about the missing
men.
The respondent Government state as follows.
No operation was carried out in the Kulp-Alaca region from
9 October 1993. The eleven persons alleged to be missing were not taken
into custody or detained. The inhabitants of the villages of Alaca and
inkaya have fled from their homes under the intimidation of the PKK.
B. Relevant domestic law and practice
Civil and administrative procedures
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its own
acts and measures."
The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... 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."
Proceedings before the administrative courts are in writing.
Any illegal act by civil servants, be it a crime or tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts and the administrative
courts. Damage caused by terrorist violence may be compensated out of
the Social Help and Solidarity Fund.
Criminal procedures
The Turkish Criminal Code makes it a criminal offence to subject
some-one to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment, inflicted by civil
servants). As regards unlawful killings, there are provisions dealing
with unintentional homicide (Articles 452, 459), intentional homicide
(Article 448) and murder (Article 450).
In general, in respect of criminal 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 (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
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 local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
Emergency measures
Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983. That includes Law 2935 on the
State of Emergency of 25 October 1983, under which decrees have been
issued which are immune from judicial challenge.
Extensive powers have been granted to the Regional Governor of
the State of Emergency by such decrees, especially Decree 285, as
amended by Decrees 424 and 425, and Decree 430.
Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas subject to the state of emergency, with the
effect that the decision to prosecute members of the security forces
is removed from the public prosecutor and conferred on local
administrative councils.
Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"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 an individual to claim indemnity from
the State for damages suffered by them without justification."
COMPLAINTS
The complaint of Mehmet Emin AKDENIZ concerns the disappearance
of his brother and nephew following their arrest by military forces in
the hamlet of Inkaya, Kulp district in Diyarbakir province on
9 October 1993 and their detention at Gundik hamlet, Alaca village, for
at least ten days and, afterwards, their transportation by military
helicopter to an unknown place.
The complaint of Sabri TUTUS concerns the disappearance of his
father following his arrest at Alaca village on 9 October 1993 and his
detention at Gundik hamlet, Alaca village, for ten days and,
afterwards, his transportation by military helicopter along with
Nusrettin Yerlikaya to the forest around the village of Kayalisu, Mus.
The complaint of Sabri AVAR concerns the disappearance of his son
and his brother following the arrest by security forces of both men in
Alaca village on 9 October 1993 and their detention for ten days at
Gundik hamlet, Alaca village, and, afterwards, their transportation to
an unknown place.
The complaint of Keles SIMSEK concerns the disappearance of his
brother following his arrest by security forces in Alaca village, and,
afterwards, his transportation to an unknown place.
The complaint of Seyithan ATALA concerns the disappearance of his
brother following his arrest by security forces on 9 October 1993 and
his detention for ten days and, afterwards, his transportation by
military helicopter to an unknown place.
The complaint of Aydin DEMIR concerns the disappearance of his
brother following his arrest by security forces on 9 October 1993 and
his detention at Gundik hamlet, Alaca village, for ten days and,
afterwards, his transportation by military helicopter to an unknown
place.
The complaint of Kemal TAS concerns the disappearance of his son
following his transfer from police to military custody on 9 October
1993 and his detention for ten days at Gundik hamlet, Alaca village,
from where Umit Tas, together with Ali Yerlikaya, was removed by a
First Lieutenant to the Sen pasture.
The complaint of Suleyman YAMUK concerns the disappearance of his
brother following his arrest at Alaca village by security forces on 9
October 1993 and his detention at Gundik hamlet, Alaca village, for ten
days and, afterwards, his transportation by military helicopter to the
forested area surrounding the village of Kayalisu opposite the hamlet
of Gundik.
The complaint of Ramazan YERLIKAYA concerns the disappearance of
his brother following his arrest by security forces on 9 October 1993
and his detention at Gundik hamlet, Alaca village, for ten days and,
afterwards, his transportation by military helicopter along with Behcet
Tutus to the forested area at Kayalisu.
All of the applicants allege violations of Articles 2, 3, 5, 13
and 14 of the Convention.
As to Article 2, the applicants submit that the circumstances of
the disappearances of the eleven missing persons may mean that they
have been killed arbitrarily in violation of Article 2 of the
Convention.
As to Article 3, the applicants state that the missing persons
are the victims of torture by reason of their subjection to the
experience of arbitrary removal from their homes and families and the
suffering which that entails for each one of them. The applicants in
their own right are, it is submitted, also victims of violations of
Article 3 in that they have been deliberately subjected to continuous
suffering, anguish and pain arising from the disappearances of their
relatives and from the State's refusal to offer any explanation of
these disappearances.
As to Article 5, the applicants, on behalf of the missing
persons, claim that their detention and their enforced disappearances
represent a direct violation of their right to liberty and security of
person.
As to Article 13, the applicants state that there is a clear
breach of the duty to provide remedies under that Article, it being
impossible to discover what has happened to eleven detained citizens
six months after the time when they were last seen.
As to Article 14, the applicants refer to an administrative
practice of discrimination on grounds of ethnic origin and complain of
violations of that Article in conjunction with Articles 2, 3 and 5.
The applicants also refer to Article 1 of the Declaration on the
Protection of All Persons from Enforced Disappearance adopted by United
Nations General Assembly resolution 47/133 of 18 December 1992.
As to the exhaustion of domestic remedies, the applicants submit
that no remedies are adequate and effective with respect to their
complaints because they have petitioned and appealed to the
authorities, civil and military, without any result.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 April 1994 and registered on
25 April 1994.
On 27 June 1994, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 4 December 1994
after one extension in the time-limit. The Government provided further
information on 25 January 1995. The applicants submitted observations
in reply on 13 February 1995.
THE LAW
The applicants complain of the taking into custody, detention and
disappearances of 11 men (who are members of their respective
families). They invoke Article 2 (Art. 2) (the right to life), Article
3 (Art. 3) (prohibition on inhuman and degrading treatment), Article
5 (Art. 5) (right to liberty and security of person), Article 13
(Art. 13) (the right to effective national remedies for Convention
breaches) and Article 14 (Art. 14) (prohibition on discrimination).
Exhaustion of domestic remedies
The Government submit that the applicants have failed to comply
with the requirement under Article 26 (Art. 26) of the Convention to
exhaust domestic remedies before lodging an application with the
Commission.
The Government contend that the applicants have not instituted
any legal proceedings. They refer to the possibility of administrative
action pursuant to Article 125 of the Constitution and to Law 2935 of
the State of Emergency and Decree 430. They state that the applicants
could have pursued a criminal complaint against the police or military
authorities pursuant to Articles 151, 152, 153 and 448 of the Code of
Criminal Procedure.
The applicants submit that they have brought their complaints to
the attention of the authorities including the Public Prosecutor and
the State Security Court and that no action has been taken. In light
of the outright denial by the security forces that their relatives have
been taken into custody or removed, they submit that any further action
on their part would be futile. They refer to the negligible rate of
prosecution of members of the security forces for human rights abuses
in South-East Turkey.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach. It is furthermore established that the burden of
proving the existence of available and sufficient domestic remedies
lies upon the State invoking the rule (cf. Eur. Court H.R., De Jong,
Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77,
p.18, para. 36, and Nos. 14116/88 and 14117/88, Sargin and Yagci v.
Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).
The Commission notes that in the present case the applicants have
made numerous approaches to the authorities, judicial, civil,
administrative and military, in relation to their missing relatives.
It notes in particular that Mehmet Akdeniz made a petition to the
Diyarbakir Public Prosecutor and to the Chief Prosecutor in Bingöl
about the disappearance of his brother; the relatives of all eleven
missing men presented their statements and a petition to the Assistant
State of Emergency Regional Governor whose office stated that they
would investigate; that Keles Simsek petitioned the Chief Public
Prosecutor of the Diyarbakir State Security Court on 12 December 1993
as did Aydin Demir and Seyithan Atala; that Sabri Avar petitioned the
chief prosecution at Kulp; that Suleyman Yamuk petitioned the state
prosecution at Bingöl; and that Mehmet Akdeniz and another relative
petitioned the Chief Prosecutor at the State Security Court at Kayseri
on behalf of four of the missing persons. The reply of the prosecution
at the State Security Court at Diyarbakir to the petition of Hüsnü
Demir indicated that it was known that eleven persons were claimed to
have been taken away.
The Commission is satisfied that in the circumstances of this
case the applicants can be regarded as having brought their complaints
before relevant and competent authorities and that accordingly they are
not required under Article 26 (Art. 26) of the Convention to pursue any
other legal remedy in this regard (cf. Nos. 16311/90, 16312/90 and
16313/90; N.H., G.H. and R.A. v. Turkey, Dec. 11.10.91, unpublished and
No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75).
The Commission concludes that the applicants may therefore be
said to have complied with the domestic remedies' rule laid down in
Article 26 (Art. 26) of the Convention and, consequently, the
application cannot be rejected under Article 27 para. 3 (Art. 27-3).
As regards the merits
The Government deny that any operation was carried out in the
area from 9 October 1993 or that any of the eleven men were taken into
custody or detained. They submit that the allegations of the applicants
are vague, unsubstantiated and of dubious credibility. They further
submit that the villages of Alaca and Inkaya have been abandoned by the
villagers under the intimidation of the PKK.
The applicants maintain their account of events, which they state
is supported by detailed statements of events and include, inter alia,
names and descriptions of members of the security services involved and
identifies the units and commanders.
The Commission 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 the merits of the application as a whole. The Commission
concludes, therefore, that the application is not manifestly ill-
founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy