AS TO THE ADMISSIBILITY OF
Application No. 21894/93
by Zülfü AKKUM, Hüseyin AKAN
and Rabia KARAKOC
against Turkey
The European Commission of Human Rights sitting in private on
5 March 1996, the following members being present:
MM. H. DANELIUS, Président
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mme G.H. THUNE
J. LIDDY
MM. M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
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 4 May 1993 by
Mr. Zülfü Akkum, Mr. Hüseyin Akan and Ms. Rabia Karakoç against Turkey
and registered on 18 May 1993 under file No. 21894/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 30 August 1993 to communicate the
application ;
- the observations submitted by the respondent Government on
10 February 1994 and the observations in reply submitted by the
applicants on 13 April 1994 ;
- the parties' oral submissions at the hearing on 18 October 1994;
- the information submitted by the respondent Government on
27 November 1995, 4 January and 13 February 1996 and the comments
of the applicants presented on 22 January 1996.
Having deliberated;
Decides as follows:
THE FACTS
The first two applicants, Zülfü Akkum and Hüseyin Akan, Turkish
nationals, are farmers in the village of Kursunlu. The third applicant,
Rabia Karakoç, also a Turkish national, is a housewife in the village
of Kayas.
The applicants submit the application in their own name and on
behalf of their deceased relatives mentioned below. They are
represented before the Commission by Professor Kevin Boyle and Ms.
Françoise Hampson, both university teachers at the University of Essex.
The facts of the present case have not been agreed by the
parties.
The applicants claim that the following events have occurred:
On 10 November 1992 at about 8.30 hours, the village
goat-herdsmen, Mehmet Akkum and Mehmet Akan, took the village animals
out to graze. They were accompanied by Hacire Ceylan and Hediye Akodun,
the village ox tenders.
In the meantime, Dervis Karakoç left his village, Tünekrak, with
his mother, wife and two children, to visit his sister in Cevrecik
village. When they arrived at Destek plain, they met Hediye Akodun and
Hacire Ceylan. At that point two soldiers came out of the places where
they had been lying in ambush.
The ox tenders returned to the village between 9.30 and 10.30
hours without the animals. They told the villagers that soldiers were
carrying out an operation 1 or 2 km away from the village and that the
soldiers had ordered them to go straight back to the village, leaving
the animals. They also said that Mehmet Akan and Mehmet Akkum had been
detained by the soldiers. Hacire Ceylan said that she heard Mehmet
Akan, who was a little way ahead, crying out as he was beaten.
As to Dervis Karakoç, the two soldiers shouted at him, telling
him to go with them and let the women go back to the village. Dervis
Karakoç told the women to go back to the village. The soldiers took
Dervis Karakoç by the arm and went some 40-60 metres further with him.
They kept warning the women to go back. They started beating Dervis
Karakoç.
A shot rang out. The soldiers who had been lying in ambush opened
fire in all directions. The women and children were sent home. Dervis
Karakoç's mother, the third applicant, says that she went home thinking
her son had been arrested by the soldiers. His wife says however in her
statement that the ox tenders were eye-witnesses to the killing of her
husband.
In the evening there was firing directed at the village from the
direction of the scene of the incident. The attack lasted for nearly
one hour. The villagers sheltered in their homes for safety. After the
sound of firing stopped, the villagers could not look for the two
goat-herdsmen, Mehmet Akkum and Mehmet Akan, because an operation was
still in progress and it was dark.
When the Karakoç women reached their village, they explained to
the other villagers what had happened. Although the third applicant
pleaded with them to go with her to the place where Dervis Karakoç's
body lay, no one would go because of fear.
On the morning of 11 November 1992, the villagers of Kursunlu
started to search the land in the area of the operation. They saw
animals shot and killed. Then Zülfü Akkum, as Mayor, went with 10 or
15 villagers to Dicle. The group applied to the Mayor of Dicle to
discover what had happened to the goat-herdsmen and to report to the
authorities the attack on the village and the animals. The Mayor of
Dicle was with the Leader of the Council. The latter suggested that
they request information from the Dicle Central Police Station. They
spoke to a lieutenant-colonel who said that soldiers of the Aricak
district of Elazig had carried out the operation in question. The
lieutenant-colonel spoke to someone on a walkie-talkie, but could get
no information. He said he would keep trying. Some villagers
representing the village of Kursunlu waited in Dicle trying to get
information.
A group who had remained in the village included the second
applicant, Hüseyin Akan. After the departure of the village Mayor to
Dicle, the others went to the scene of the incident and saw that the
soldiers' operation was still continuing.
The third applicant, Rabia Karakoç, says that "in the morning"
her family went to Kursunlu village and accompanied the villagers to
the place where the soldiers had been lying in ambush. 50-60 metres
further on they saw the bodies of Dervis Karakoç and his horse, which
had also been shot. There were many empty cartridges and they took
some. This suggests his body was found on 11 November. The wife of
Dervis Karakoç says that his body remained at the scene of the incident
for two days. When they had permission to collect the body, the women
took it to the village and then to Dicle. After the autopsy, the body
was returned to them for burial.
On 12 November 1992, the first applicant, Zülfü Akkum, petitioned
the Public Prosecutor to discover what had happened to Mehmet Akkum and
Mehmet Akan, but with no result. At around 14.30 hours that day, Zülfü
Akkum telephoned home and was told that the bodies of Dervis Karakoç
and Mehmet Akan had been found. The statement of Hüseyin Akan says that
the bodies were found at around midday on 13 November, following an
incident in the village earlier in the morning.
On the morning of 13 November 1992, the Company Commander of the
Dicle Central Gendarmes Station came to the village with his soldiers
and assembled the whole of the village population in the square next
to the school. Later they separated the youths from the elderly.
Addressing the young people, the Commander accused them of taking
provisions to the PKK (Kurdish Workers' Party - an armed separatist
movement) and told them to leave the village. In the meantime, some of
the soldiers were searching the village houses. The second applicant,
Hüseyin Akan, approached the Commander and said that his brother and
the other goat-herd, Mehmet Akan, were in the area of the operation.
The Commander confirmed that the two men were in the area of the
operation. Later the soldiers left.
It was midday, and all the villagers went out searching. When
they arrived at the scene of the incident, they saw that hundreds of
animals had been shot and killed. The dead body of Mehmet Akan was
there. About 100 metres away was the body of Dervis Karakoç. He had
also been shot and killed. The villagers took the bodies to the
village.
The first applicant, Zülfü Akkum, on being told of the discovery
of the bodies, immediately informed the Central Gendarmes Station in
Dicle and the Public Prosecutor of the situation. He was told to bring
the bodies to town. He asked for an ambulance. He went to the village
with an ambulance provided by the Public Prosecutor's office and took
the bodies to Dicle. There were bullet marks in the bodies of both
Mehmet Akan and Dervis Karakoç. Both had apparently been killed by
shooting. After the autopsies had been carried out, the bodies were
transported back to the village in private vehicles which the first
applicant had hired. He stayed in Dicle to enquire about the fate of
his son.
The following day, 14 November 1992, the first applicant and two
others went to the Gendarmes Station. They spoke to a captain and asked
him to look into the situation and help them. After a while, the
captain said that two bodies had been found in Elazig and one might be
that of Zülfü Akkum's son.
On Monday 16 November, Zülfü Akkum and five other villagers went
to Elazig together. They petitioned the Elazig Public Prosecutor's
Office. They were sent to the Security Headquarters. There they were
shown two photographs of the two people killed. One photograph was that
of Zülfü Akkum's son.
When the necessary legal formalities had been completed, they
collected the body which had been buried in Elazig cemetery because no
one had claimed it. They took the body back to the village and buried
it.
The body of Zülfü Akkum's son showed marks of torture. He was
covered in wounds and bruises. There were many burn marks on his body.
His fingers were broken and his left upper arm was also completely
broken.
The Government submit the following different account:
On 10 November 1992, the gendarme forces of Elazig carried out
a military operation against the militants of the PKK near the village
of Bukardi, in Elazig. Mehmet Akkum died during the fighting which
broke out between the armed militants of the PKK and the security
forces. Several documents from the PKK, ammunition for firearms and
stocks were seized in the place of the incident.
Proceedings which had been instituted against Mehmet Akkum by the
Public Prosecutor of the Kayseri State Security Court were discontinued
after his death.
On 10 November 1992, violent fighting broke out near the village
of Aricak between the gendarme forces of Dicle and the armed militants
of the PKK. Mr. Karakoç and Mr. Akan died during this fighting.
At the end of the preliminary investigation instituted with
respect of these killings the Public Prosecutor of Pula filed on
19 August 1994 a criminal action in the State Security Court of
Kayseri. The indictment concerned seven gendarmes charged with the
killing of more than one person by unidentified perpetrator.
The criminal case had been transferred to a military tribunal of
Elazig.
On 21 December 1995 the military tribunal of Elazig acquitted the
gendarmes on trial for the killing of the applicants' relatives. The
Government have not indicated whether an appeal has been lodged against
the acquittal.
The relevant domestic law and practice
The Government have submitted that the following domestic law is
relevant to the case:
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."
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 a 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.
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."
A claim for compensation may be lodged with the courts against
the acts and decisions of the Regional Governor of the State of
Emergency.
The Turkish Constitution guarantees rights comparable to those
found in the Convention (cf. Chapters II and III, Articles 17 to 74 of
the Constitution). Constitutional and conventional rights may be
enforced by the domestic courts, if raised by the litigants.
An appeal against a ministerial decision, together with a claim
for just satisfaction, may be lodged with the local administrative
court.
Complaints by victims of criminal offences 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 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 Council of State; a refusal to prosecute is subject to an
automatic appeal of this kind.
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.
Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
Damage caused by terrorist violence may be compensated out of the
Social Help and Solidarity Fund.
The applicant points to the following legal provisions which in
themselves weaken the protection of the individual which might
otherwise have been afforded by the above general scheme:
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 which are 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. These councils are made up of civil servants
and have been criticised for their lack of legal knowledge, as well as
for being easily influenced by the Regional Governor or Provincial
Governors, who also head the security forces.
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 him without justification."
According to the applicant, this Article grants impunity to the
Governors.
COMPLAINTS
The applicants complain of violations of Article 2 of the
Convention in that their close relatives were intentionally killed by
soldiers. They allege violations of Article 6 of the Convention on
account of a failure to institute proceedings before a tribunal against
those responsible for the killings, as a result of which the applicants
cannot bring civil proceedings arising out of these events. They
further complain under Article 1 of Protocol No 1 of the destruction
of livestock and horse. In their submission, Article 13 of the
Convention has also been violated because of the lack of an independent
national authority before which they can bring their complaints with
any prospect of success.
The first applicant Zülfü Akkum also complains of a violation of
Article 3 of the Convention on account, on the one hand, of the torture
inflicted on his son and, on the other hand, of his inability to
discover what had happened to his son.
The applicants also consider that there have been violations of
Article 14 in conjunction with Articles 2, 6, and 13 of the Convention
and Article 1 of Protocol No 1, since only Turkish citizens of Kurdish
origin are regularly exposed to violations of the Convention of the
kind referred to. They finally allege that the discrimination on
account of race violates Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 May 1993 and registered on
18 May 1993.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
30 August 1993. It decided, pursuant to Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
admissibility and merits. The Government's observations were submitted
on 10 February 1994, after an extension of the time-limit fixed for
that purpose, to which the applicant replied on 13 April 1994.
On 27 June 1994, the Commission decided to invite the parties to
make oral submissions on the admissibility and merits of the
application at a hearing fixed for 18 October 1994.
At the hearing, the Government were represented by Mr. B. Çaglar,
Agent, Mr. S. Alpaslan, Mr. M. Özmen, Ms. D. Akçay and Mr. H. Golsong,
all counsel, and Ms. i. Boivin, Mr. i. Kovar, Mr. A. Kurudal, Mr. F.
Erdogan, Mr. Y. Kizilkaya, Mr. C. Duatepe and Ms. S.B. Ersöz, all
experts. The applicants were represented by Professor K. Boyle and Ms.
F. Hampson, both counsel, Mr. S. Aslantas, legal adviser from the
Diyarbakir Bar, and Mr. M. Yildiz, assistant.
On 19 October 1994, following the hearing of 18 October 1994, the
Commission decided to adjourn its examination of the above application
until, at the latest, its session of December 1995. The Commission
informed the Government that it would like to be kept regularly
informed of any developments in the domestic proceedings against the
accused gendarme.
On 15 September 1995, the Secretary to the Commission invited the
Government to submit any information on the developments in the
domestic proceedings against the accused gendarme.
On 27 November 1995, 4 January and 13 February 1996, the
Government submitted supplementary information. The applicant presented
his comments on 22 January 1996.
THE LAW
The application concerns the killings of three persons and of
their livestock and horse respectively.
The applicants allege that these persons were killed by Turkish
Government forces. They complain in their own name, and on behalf of
their dead relatives, of violations of Article 2 (Art. 2) (the right
to life), Article 3 (Art. 3) (freedom from inhuman and degrading
treatment), Article 6 (Art. 6) (the right of access to court), Article
13 (Art. 13) (the right to effective remedies for Convention breaches),
and Article 14 (Art. 14) (freedom from discrimination in the securement
of Convention rights) of the Convention, as well as Article 1 of
Protocol No. 1 (P1-1) to the Convention (the right to property).
The Government argue that the application is inadmissible for the
following reasons:
i. the applicants failed to exhaust domestic remedies;
ii. the application is an abuse of the right of petition; and
iii. the application is anyway manifestly ill-founded.
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 point out that criminal proceedings have been
brought in the State Security Court of Kayseri against a number of
gendarmes, that these gendarmes have been acquitted, and an appeal may
be lodged with the Court of cassation. The Government have not informed
the Commission whether such an appeal has in fact been lodged.
The Government also refer to
- the possibility of an appeal against a ministerial decision
before the Elazig administrative court; and
- the possibility of a claim for compensation against the
Regional Governor of the State of Emergency.
The Government assert that these remedies are effective and that
Turkish law envisages the enforcement of constitutional and Convention
rights before the domestic courts. The Government assert that there is
no administrative practice or official tolerance of the type of acts
alleged by the applicant. The aforementioned remedies represent nothing
extraordinary and are accessible and effective before independent
judicial authorities. Any suggestion that people expose themselves to
risk if they pursue these normal remedies can only be qualified as
abusive, fallacious and wholly devoid of credibility.
The applicants maintain that there is no requirement that they
pursue domestic remedies. Any purported remedy is illusory, inadequate
and ineffective for the following reasons:
- an administrative practice of unlawful killings;
- the absence of any significant case-law showing the payment of
adequate compensation in circumstances comparable to the present
case;
- the absence of successful cases against the Regional Governor for
compensation under the State of Emergency Law;
- an official attitude of legal unaccountability towards the
security forces;
- the discouragement of those who do wish to seek remedies;
- an administrative practice of not respecting the rule under
Article 13 (Art. 13) of the Convention which requires the
provision of effective domestic remedies; and
- whether or not there is an administrative practice, domestic
remedies were ineffective in this case, owing to the failure of
the legal system to provide redress.
The applicants do not deny that the procedures identified by the
Government are formally part of the Turkish legal structure, but they
contend that the Government have not shown how such procedures could
conceivably be effective for the specific circumstances of the present
application.
The Commission has noted the remedies referred to by the
Government and the remarks of the applicants as to their theoretical
nature.
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. 11.5.89, D.R. 61, pp. 250, 262).
The Commission notes that the incident occurred on
10 November 1992, i.e. more than three years and three months ago.
Criminal proceedings have been brought against several gendarmes but
have resulted, at first instance, in an acquittal. The Government have
not informed the Comission of any appeal against the judgement of
acquittal. In these circumstances, the Commission considers that the
applicants are not required to pursue any further remedy in addition
to the criminal proceedings brought by the public prosecutor. The
military tribunal of Elazig, acting as a first instance court in the
present case, acquitted the accused soldiers for lack of sufficient
evidence, but did not refer to any other possible perpetrators (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, p. 207).
Consequently, the Commission finds that the requirement as to the
exhaustion of domestic remedies has been satisfied and that the
application cannot be rejected on the basis of Articles 26 and 27 para.
3 (Art. 26, 27-3) of the Convention.
Abuse of the right of petition
The Government maintain that the application, being devoid of any
sound judicial basis, has been lodged for the purposes of political
propaganda against the Turkish Government. Accordingly the application
constitutes an abuse of the right of petition which discredits the
legal nature of the Convention control mechanism.
The applicants reject the Government's submission and respond
that their complaints relate exclusively to violations of the
Convention which they have suffered.
The Commission considers that the Government's argument could
only be accepted if it were clear that the application was based on
untrue facts. However, this is far from clear at the present stage of
the proceedings, and it is therefore impossible to reject the
application on this ground.
As regards the merits
The Government submit that it is generally accepted in the
comparative and international law on terrorism, authorising "certain
adaptations of the liberal model", that restrictions on Convention
rights will be deemed necessary in a democratic society threatened by
terrorist violence, as being proportionate to the aim of protecting
public order.
The Government add that the threat posed to Turkey by the PKK and
its affiliations is internationally recognised, as is the need to react
firmly to it. Terrorism strikes at the heart of democracy, its
fundamental rights and the judicial and political systems. This has
been acknowledged by the Convention organs (Eur. Court H.R., Fox,
Campbell and Hartley judgment of 30 August 1990, Series A no. 182, and
Nos. 11209/84, 11234/84, 11266/84 and 11386/85, Brogan and Others v.
the United Kingdom, Comm. Report 14.5.87, para. 106). It is not for the
Convention organs to substitute their view on how a State should
conduct the necessary fight against terrorism. In this respect the
Government assert that the powers exercised by the gendarmes in this
case did not exceed the margin of appreciation conferred on States by
the Convention.
The Government maintain that there is no evidence to substantiate
the applicants' allegations against the security forces. They emphasise
that three persons have been killed in an armed clash with security
forces who were acting in self-defence.
Accordingly, the Government consider that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicants maintain that their account of events was accurate
and that their Convention claims were substantiated. They contend that
the Government's submissions on the restrictions which necessarily flow
from the fight against terrorism are immaterial to the facts of the
present case. The application concerns, inter alia, the use of lethal
force in wholly unjustifiable conditions unrelated to a terrorist
attack necessitating self-defence on the part of the security forces.
There is, therefore, no reason to take into account the political
situation in the region concerned.
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, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy