AS TO THE ADMISSIBILITY OF
Application No. 23185/94
by Ismet ASKER
against Turkey
The European Commission of Human Rights sitting in private on
28 November 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
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 15 December 1993
by ismet Asker against Turkey and registered on 7 January 1994 under
file No. 23185/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen of Kurdish origin, born in
1920 or 1933 and resident at Melikahmet Cd., Lülebey mh. He is
represented before the Commission by Professor Kevin Boyle and
Ms. Françoise Hampson, both of the University of Essex.
The facts of the present case as submitted by the applicant may
be summarised as follows.
The applicant was resident at Islam village, Kulp. In the winter
of 1992, the security forces sent a list of names to ten families
living in the hundred household village. They were told, "You will
leave for good by the summer." At one point, the forces said that they
would not burn down things after all. The applicant does not
understand why that changed.
On the morning of 16 June 1993, at around 07.00-08.00 hours,
about 400 soldiers organised a raid on Islam village on the orders of
the Kulp District Gendarme station Commander, Recep Cömert. During the
operation, the forces set fire to the applicant's two-storey, eight
roomed house. They gave no grounds for doing so. Just before, a
soldier had told the applicant to go and get his things out of his
house. He and his wife went inside and started gathering up their
things. They realised the house had been set on fire and they rushed
out of the back door. They waited on the main road. In the meantime,
the forces frightened villagers, who had come to try to put out the
fire, with their firearms and they prevented them from putting out the
fire. The forces waited until the house had completely burnt down.
They then burnt down the house of K.S., a little further on, together
with all the household effects. The forces then left.
On 25 June 1993, the applicant presented a petition to the Kulp
District Governorship. Since the applicant does not speak Turkish, the
District Governor asked him through an interpreter whether there was
anyone he knew amongst the soldiers who came to the village. He said
that he knew Captain Recep Cömert. The District Governor then said,
"All right. I am receiving the petition. You can go." The applicant
has heard nothing further about his petition. The petition indicated
the losses suffered by the applicant.
Ten days after his house was burned down (i.e. on 26 June 1993),
soldiers, again under the command of Captain Recep Cömert, organised
another raid on the village. That time, the forces burnt down the
homes of S.T., A. K.E. and K.S. and then burnt down the water-powered
flour mill, run by N.E., N.S., K.S. and H.E. No one was taken into
custody. Captain Recep turned to the villagers and showered them with
threats, saying, "All of you will leave this village. Otherwise next
time we come, we shall burn you all together with your houses." They
then left the village.
It is believed that Captain Recep Cömert has been moved to
Mersin. A transfer to a place on the coast and outside the area
where there is fighting is usually seen as a reward for services
rendered.
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 6, 8,
13, 14 and 18 of the Convention and Article 1 of the First Protocol.
As to Article 2, the applicant complains of the life-threatening
attack to which he was subjected by agents of the State, of the threat
to life occasioned by gross recklessness on the part of agents of the
State, of the lack of any effective system for ensuring protection of
the right to life and of the inadequate protection of the right to life
in domestic law.
As to Article 3, he complains of an inhuman and degrading
practice of clearing villages, a form of collective punishment, and of
discrimination on grounds of race or ethnic origin.
As to Article 5, he complains of the complete lack of security
of the person.
As to Article 6, he refers, on the one hand, to the impossibility
of challenging the deprivation of property before it took place, which
represents a denial of access to court for a determination of civil
rights and, on the other hand, to the failure to initiate proceedings
before an independent and impartial tribunal against those responsible
for the attacks and destruction, as a result of which he cannot bring
civil proceedings arising out of these events, which is also a denial
of effective access to a court.
As to Article 8, the applicant complains of the destruction of
his home and family life.
As to Article 13, he refers to the lack of any independent
national authority before which his complaints can be brought with any
prospect of success.
As to Article 14, he considers that he has been subject to
discrimination on account of race or ethnic origin in the enjoyment of
his rights under Articles 2, 5, 6 and 8 of the Convention and Article
1 of the First Protocol.
As to Article 18, he alleges that the interferences in the
exercise of his Convention rights were not designed to secure the ends
permitted under the Convention.
As to Article 1 of the First Protocol, he complains of the
destruction of his home and possessions.
As to the exhaustion of domestic remedies, the applicant
considers that there is no requirement that he pursue alleged domestic
remedies. In his opinion, any alleged remedy is illusory, inadequate
and ineffective because
(a) the operation which led to the threat to life and
destruction at issue in this case was officially organised,
planned and executed by the agents of the State ;
(b) there is an administrative practice of non-respect of the
rule which requires the provision of effective domestic remedies
(Article 13) ;
(c) whether or not there is an administrative practice,
domestic remedies are ineffective in this case, owing to the
failure of the legal system to provide redress ;
(d) alternatively, the applicant has done everything he can do
to exhaust domestic remedies by submitting a petition to the
District Governor ; the fact that it has yielded no result
confirms the ineffectiveness of any alleged remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced before the Commission on 15
December 1993 and registered on 7 January 1994.
On 5 April 1994 the Commission decided to communicate the
application to the Turkish Government who were invited to submit their
observations on its admissibility and merits before 8 July 1994. At the
Government's request, this time-limit was subsequently extended until
8 August 1994.
By letter of 6 September 1994 the Commission's Secretary pointed
out to the Government that the period for the submission of the
Government's observations had expired long ago and that no extension
of that time-limit had been requested. It was added that the
application was being considered for inclusion in the list of cases for
examination by the Commission at its October or November session.
No observations have been submitted by the Turkish Government.
THE LAW
The applicant complains of violations of Articles 2, 3, 5, 6, 8,
13, 14 and 18 (Art. 2, 3, 5, 6, 8, 13, 14, 18) of the Convention and
Article 1 of the First Protocol in connection with a raid by security
forces on the applicant's village, in the course of which the
applicant's house was burned down.
The Government, which have been informed that the application was
considered for inclusion in the agenda of the Commission at its present
session, have submitted no observations on the admissibility or merits
of the application.
It is the normal practice of the Commission, where a case has
been communicated to the respondent Government, not to declare the
application inadmissible for failure to exhaust domestic remedies,
unless this matter has been raised by the Government in their
observations. The Commission considers that the same principle should
be applied where, as in the present case, the respondent Government
have not submitted any observations at all.
It follows that the application cannot be rejected on the ground
that the domestic remedies have not been exhausted.
Moreover, the Commission is of the opinion that the application
raises important questions of fact and law which cannot be resolved at
the stage of the admissibility but require an examination on the
merits. The application cannot therefore be considered manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention and no other ground for inadmissibility has been
established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy