AS TO THE ADMISSIBILITY OF
Application No. 21895/93
by Ramazan CAGIRGA
against Turkey
The European Commission of Human Rights sitting in private on
19 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mrs. 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 reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
10 February 1994 and the observations in reply submitted by the
applicant on 12 April 1994;
- additional material submitted by the applicant on 15 August, 23
September and 4 and 10 October 1994;
- additional material submitted by the Government on 4 and 7
October 1994;
- the parties' oral submissions at the hearing on 19 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish national born in 1961, lives in the city
of Cizre.
He is represented before the Commission by Professor Kevin Boyle
and Ms. Françoise Hampson, both university teachers at the University
of Essex.
A. The particular circumstances of the case
The facts of the present case are in dispute, particularly as
regards the authors of the damage of which complaint is made by the
applicant.
The applicant recounts the following version of the events in
question:
On the evening of 7 November 1992, at about 19.00 hours when the
applicant was at home with the other members of his family, there was
a sound of detonation in the neighbourhood. This was apparently caused
by a mine which had exploded under a police tank or panzer. After about
20 minutes the electricity went out all over the city and the sound of
intensive firing started all over the place. When the family went
outside to see what was happening, they saw an armoured car firing at
houses in the area. They went into the cellar to avoid harm.
The sound of cannons started. According to the applicant, the
statements of some witnesses indicate that the sound of rockets came
from where there were military tank battalions and the central
gendarmes station.
Two cannon-balls landed on houses nearby. Immediately afterwards
there was a big explosion in the applicant's house. Seven members of
the applicant's family were killed, and seven others were seriously
injured. The applicant and a guest visiting the house survived. An
uninjured child, Yusuf, was sent for help, but none was forthcoming
because of the firing in the four corners of the city.
There were three or four hours of sustained military assault on
Cizre, directed particularly at the Cudi neighbourhood. There was no
clash or fire-fight with terrorist groups; it was a one-sided assault.
This is reflected in Government written records which state that police
in the panzer hit by the mine were treated for minor injuries. No other
casualties were sustained amongst the security forces or amongst a
purported terrorist adversary.
According to the applicant, a witness states that the cannon-ball
which fell on the applicant's house was fired by State forces. He
points out that no one else has cannons. The same witness states that
the cannon-ball in question measured 105mm.. Pieces of it were lying
on the ground. It is therefore believed that the missile was of cannon
or artillery origin. The PKK does not have the means to use heavy
artillery in city centres, unlike the security forces.
According to another witness who lives near the applicant,
neighbours tried several times to go out into the street to help the
applicant's family, but were unable to do so on account of intensive
fire from the State forces. Later, the witness's brother telephoned
Security Headquarters and explained the incident. He asked that the
firing cease and that he should have permission to go and help. The
State forces did not stop firing. The neighbours were therefore unable
to help the applicant promptly.
When the firing stopped, the applicant and his neighbours took
the wounded to hospital by car. The dead amongst the applicant's family
were Haci (father), Leylâ (mother), ismail and Nadiv (brothers), Sinem
and Fatma (sisters) and Henif (nephew). Meryem (sister or sister-in-
law) was wounded in the eye and the hand. Emine (sister or sister-in-
law) was deafened by the sound of the explosion. Musa (brother) had a
piece of shrapnel extracted from his stomach during an operation.
Sivan, Vedat, Bahrem and Abdulvahap (nephews) were injured.
The State forces did not investigate claims which did not accuse
the PKK of responsibility for the events. There was anyway no immediate
inquiry and that which was conducted nearly two years later, in time
for the hearing before the Commission, was after much of the damage had
been repaired, and the forensic evidence lost.
The Government submit the following different account:
On 7 November 1992 around 19.00 hours, three armoured personnel
carriers belonging to the security forces of Cizre were making a
routine patrol in the Cudi quarter of Cizre. One of the carriers hit
a mine which had been laid by PKK militants. Several policemen in the
vehicle were injured. Then all three carriers came under attack by PKK
terrorists and quickly moved away.
The electricity in the city was cut off by the terrorists who
started firing with heavy weapons at official buildings in the city
centre and several other quarters, as a result of which 12 policemen
suffered injury. The security forces retaliated and the firing ended
around 22.30 hours. No terrorist casualties were recorded. The
assailants could not be apprehended and investigations are continuing.
According to Government experts, the applicant's house was hit
by a missile fired by the PKK from an RPG 7, which could have misfired
or which could have been aimed at the armoured vehicles about 150 m.
away, but ricocheted off one of them. Seven members of the applicant's
family were killed and seven others injured as a result.
The technical investigation revealed smoke of the kind generated
by a shaped charge such as that used by the RPG. An RPG (rocket
propelled grenade) is a Russian made anti-tank weapon. It can be
shoulder-fired, like a bazooka, and has a range of up to 900 m.. It is
frequently used by terrorist groups such as the PKK. The armoured
personal carriers were not equipped with heavy weapons and, anyway, it
would have been impossible for a moving armoured vehicle to have
launched the missile in question. These carriers were only equipped
with small arms such as machine-guns. The crew in the armoured vehicles
stated that the carriers were hit several times by missiles fired from
rockets and other terrorist small arm weaponry, according to the sound
of impact.
As regards the applicant's allegation that his house could have
been hit by other arms used by the security forces such as a 105mm.
tank gun, or by artillery or mortar shelling, the Government state that
the tank battalion was located 1,825 m. north-east of the house. If a
tank had fired the shot, the cannon-ball would have entered by the roof
on the eastern side, passing through the first floor. However,
according to witnesses and the forensic evidence, the house was hit
from a frontal, ground level, westerly direction. A cannon-ball from
a tank gun would have caused more damage to the target, not only on the
western side of the house, but to all rooms in the building.
Moreover, given the density of the surrounding housing, it would
have been impossible to avoid damaging other property if such firing
had occurred, but there was no damage to neighbouring residences. Long
range weapons like tank guns cannot be used in such operations with
security forces and civilians around. Finally, tanks in that battalion
could not have fired at that hour because of their limited visibility
in the dark.
An investigation regarding the events has been instituted by the
public prosecutor attached to the State Security Court of Diyarbakir.
According to a forensic pathologist's report submitted to the
Commission by the applicant's representatives, the Government's
ricochet theory is implausible because the angle of impact diagnosed
by the Government's experts would not have sent the missile in the
direction of the applicant's house. The applicant's expert stated that
the only logical conclusion was that the missile had been fired from
the armoured personnel carrier.
B. 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 State Council; 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 certain 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 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 them without justification."
According to the applicant, this Article grants impunity to the
Governors.
COMPLAINTS
The applicant complains, in his own name and on behalf of his
dead and injured relatives, that they have been the victims of the
following violations of the Convention:
1. A violation of Article 2 of the Convention is alleged on account
of
- the intentional deprivation of life not attributable to any of
the purposes set out exhaustively in paragraph 2 of this
Convention provision;
- alternatively, the deprivation of life attributable to a use
of lethal force disproportionate to any lawful ground on which
such force could be used;
- the deprivation of life attributable to the use of a degree of
force more than was "absolutely necessary" to achieve any
legitimate purpose;
- the failure adequately to protect the right to life by
initiating legal proceedings to determine whether or not those
responsible for the deaths acted lawfully;
- the inadequate protection of the right to life in domestic law;
and
- the fact that only Turkish citizens of Kurdish origin are
regularly subjected to unlawful killings (an allegation in
respect of which the applicant also invokes Article 14 of the
Convention).
2. A violation of Articles 3 and 14 is alleged on account of an
administrative practice of discrimination on grounds of people's
Kurdish origin.
3. A violation of Article 6 of the Convention is alleged on account
of
- the failure to initiate proceedings before an independent and
impartial tribunal against those responsible for the killings and
injuries, as a result of which the applicant cannot bring civil
proceedings arising out of those events. The applicant claims
that he is therefore denied effective access to court.
- the breakdown of the investigation and prosecution system in
relation to the acts of the security forces only arises on a
systematic basis in South-East Turkey. Only in the Kurdish region
of Turkey is there therefore the knock-on effect of a denial of
access to court. This allegation is brought under a combination
of Articles 6 and 14 of the Convention.
4. A violation of Article 13 is alleged on account of
- a lack of any independent national authority before whom these
complaints can be brought with any prospect of success; and
- the fact that only Turkish citizens of Kurdish origin are
affected by the wholesale breakdown of the system of "effective
remedies" (an allegation in respect of which the applicant also
invokes Article 14 of the Convention).
5. A violation of Article 1 of Protocol No 1 is alleged on account
of
- the destruction of the applicant's home; and
- the fact that only the property of Turkish citizens of Kurdish
origin is subjected to such destruction (an allegation in respect
of which the applicant also invokes Article 14 of the
Convention).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 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 12 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 19 October 1994. Prior to the
hearing the parties submitted additional material: the applicant on 15
August, 23 September and 4 and 10 October 1994 and the Government on
4 and 7 October 1994.
At the hearing on 19 October 1994, 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 applicant was 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.
THE LAW
1. The application concerns an event which took place in Cizre on
7 November 1992. On that occasion, an explosive device hit the
applicant's house. It killed seven members of the applicant's family
and injured seven others. The applicant alleges that the device was
fired by Turkish Government forces. He complains in his own name, and
on behalf of his dead and injured 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).
2. The Government deny the applicant's allegations and provide a
different account of events. They claim that the explosive attack on
the applicant's family and home was the work of the PKK.
The Government argue that the application is inadmissible for the
following reasons:
i. the applicant 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.
3. Exhaustion of domestic remedies
The Government submit that the applicant has 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 rely on
- the investigation by the public prosecutor attached to the
Diyarbakir State Security Court;
- the possibility of an appeal against a ministerial decision
before the Cizre 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, which acts are anyway denied. 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 applicant maintains that there is no requirement that he or
his family pursue domestic remedies. Any purported remedy is illusory,
inadequate and ineffective for the following reasons:
- the limitations on rights and remedies created by the state of
emergency;
- an administrative practice of unlawful killings and destruction
of property;
- the lack of genuine investigations by public prosecutors and
other competent authorities;
- even if an investigation is made, the lack of effective action
being taken afterwards;
- the absence of any significant case-law showing the payment of
adequate compensation in circumstances comparable to the present
case (which is unsurprising given the systematic blame placed by
the Government on the PKK for such acts);
- 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 positive 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 applicant added that, in order to be able to use a remedy,
the individual needs to be able to seek and obtain legal advice and the
lawyers need to be able to pursue appropriate remedies without fear of
the consequences. He alleged, however, that several lawyers who have
dealt with cases of this kind have been subjected to detention and ill-
treatment. At present 16 are facing criminal charges, which include
drawing up documents belittling the Turkish State and faxing them to
human rights organisations in Europe. This is demonstrated in other
cases pending before the Commission.
The applicant does not deny that the procedures identified by the
Government are formally part of the Turkish legal structure, but he
contends that the Government have not shown how such procedures could
conceivably be effective for the specific circumstances of the present
application. The purported remedies are ineffective in his case for the
following reasons:
- the superficial nature of the investigation in the present
case, being conducted too late after the event and being based
on the assumption that the damage was caused by the PKK;
- as far as the applicant is aware, the absence of any
ministerial decision;
- the inadequacy of constitutionally guaranteed rights, such as
Article 17 (Art. 17) of the Constitution which provides standards
for the use of lethal force which are less strict than the
standards of Article 2 (Art. 2) of the Convention; and
- the absence of any significant case-law demonstrating
successful claims for compensation against the Regional Governor
of the State of Emergency.
The Commission has noted the remedies put forward by the
Government and the remarks of the applicant as to their theoretical and
illusory nature.
The Commission does not deem it necessary to determine whether
there exists an administrative practice on the part of Turkish
authorities tolerating abuses of human rights of the kind alleged by
the applicant because it agrees with him that it has not been
established that he and his family had at their disposal adequate
remedies under the state of emergency to deal effectively with their
complaints. The Commission has formed this view for the following
reasons:
The Commission notes that there is a pending inquiry into the
events of the present case. However, it is unclear whether this inquiry
may be considered effective in view of the delays involved (two years
having gone by with no result), and the loss of essential forensic
evidence after the completion of repairs. In this connection the
Commission accepts that regard must be had to the time element involved
in the present case, which seems to be of crucial importance to the
applicant's complaint (cf. mutatis mutandis, Nos 15530/91 and 15531/91,
Mitap and Müftüoglu v. Turkey, Dec. 10.10.91, D.R. 72 ; No 7990/77,
Dec. 11.05.81, D.R. 24 p. 57).
The Commission also considers that it cannot be said at this
stage that the applicant's fear of reprisal if he had complained more
vigorously about the bombing of his home and family is wholly without
foundation.
The Commission is, therefore, satisfied that, in the
circumstances of this case, the applicant could rely on the public
prosecutor's inquiry into the events of 7 November 1992 and was not
required under Article 26 (Art. 26) of the Convention to pursue any
separate 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, to be published in
D.R. 75). The Commission concludes that the applicant may 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).
4. 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 applicant rejects the Government's submission and responds
that his family's complaints relate exclusively to violations of the
Convention which they 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.
5. 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 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 police while the applicant was in their custody
did not exceed the margin of appreciation conferred on States by the
Convention.
The Government maintain that there is no evidence to substantiate
the applicant's allegations against the security forces. They emphasise
that the physical and material damage caused in the present case was
not the work of any State agent but that of PKK terrorists.
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 applicant maintains that his account of events was accurate
and that his Convention claims were substantiated. He contends 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 scope 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 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