AS TO THE ADMISSIBILITY OF
Application No. 23657/94
by Izzet ÇAKICI
against Turkey
The European Commission of Human Rights sitting in private on
15 May 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
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 May 1994 by
Izzet ÇAKICI against Turkey and registered on 9 May 1994 under file
No. 23657/94;
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
2 January 1995 and the observations in reply submitted by the
applicant on 8 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, born in 1953,
resides at Diyarbakir. He is represented before the Commission by
Professor Kevin Boyle and Ms. Françoise Hampson, both university
teachers at the University of Essex, England. He complains to the
Commission on his own behalf and on behalf of his brother, Ahmet
Çakici, who has disappeared while he was held in custody.
The facts as submitted by the parties may be summarised as
follows.
A. Particular circumstances of the case
The applicant gives the following account.
On 8 November 1993 there was an operation in Çiftlibahçe village,
Hazro district, Diyarbakir province, involving about 400 members of the
security forces. The operation was carried out by soldiers connected
to the Hazro district Gendarme Station and protectors connected to the
same station. Houses in the village were burned, including that of the
applicant's brother, Ahmet Çakici. Ahmet Çakici had moved to Diyarbakir
about a week before these events but had returned to Çiftlibahce
village to collect some of his possessions that were still in the
village. He was taken into custody by the soldiers at the same time as
three others, Mustafa Engin, Abdurrahman Al and Tahsin Demirbas. This
event was witnessed by the villagers and it was also reported by the
wife of Ahmet Çakici.
Ahmet Çakici was thrown into a car by the soldiers and
protectors, together with Mustafa Engin and Tahsin Demirbas. Both of
them saw Ahmet whilst they were in custody.
On 9 November 1993 Mustafa Engin was taken to the Diyarbakir
police headquarters. He does not know where he was taken exactly as he
was blindfolded. He was tortured. While being tortured, he was asked
whether he knew Ahmet Cakici. Mustafa has known Ahmet since the latter
was a child, and Mustafa's daughter is Ahmet's sister-in-law. Mustafa
was asked questions about a visitor whom Ahmet had brought to the
house. About six or seven days later, Mustafa was taken to the second
floor of the building. When his blindfold was lifted, he saw Ahmet.
Mustafa stayed in custody 24 days of which 16-17 days were spent in the
same place as Ahmet. Ahmet told Mustafa that he had been tortured many
times and intensively. He had been given electric shocks twice and one
of his ribs was broken. A sum of 4.280.000 Turkish Liras which he had
had in his pocket when he was caught had been taken by the first
lieutenant.
After Mustafa was released, he informed Ahmet's family about his
detention. On 22 December 1993, Ahmet's father, Tevfik, applied to the
Prosecutor of the State Security Court in Diyarbakir for information
as to his son's whereabouts, but the authorities did not accept that
Ahmet had been taken into custody. The request for information about
Ahmet Çakici was taken at the offices of the Chief Prosecutor but was
returned to the applicant with the oral reply that Ahmet Çakici was not
on their list of persons in custody and there was no need for the Chief
Prosecutor to take his petition.
The respondent Government state as follows.
The custody record which lists the names of Tahsin Demirbas,
Abdurrahman Al and Mustafa Engin contains no mention of Ahmet Çakici.
The public prosecutor of Hazro has informed the chief public prosecutor
at the State Security Court at Diyarbakir that Ahmet Çakici was never
placed in custody or detained on remand. The State Security Court at
Diyarbakir states that he has never been detained or questioned for a
crime or offence entering within their competence, that there is no
file concerning him in existence and that he is not detained by any
authority under their jurisdiction.
The Government refer to a letter by the Commander of the
Gendarmerie in the department which states that Ahmet Çakici is being
sought by the authorities on the basis that he is considered as having
joined the terrorists and of having participated in the murder of five
teachers in the village of Dadas on 23 October 1993.
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
someone 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). Provisions also cover threats
(Article 191), unlawful deprivation of liberty (Article 179 in general
and Article 181 for civil servants), obliging someone through force or
threats to commit or not to commit an act (Article 188).
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).
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 applicant complains of the following violations of the
Convention:
Article 2
1. A violation of Article 2 because unacknowledged detention in the
hands of the State in South-East Turkey, on account of the
administrative practice of torture and the high incidence of deaths in
custody, some apparently as a result of torture, is life-threatening.
2. A violation of Article 2 on account of the lack of any effective
system for ensuring protection of the right to life.
3. A violation of Article 2 on account of the inadequate protection
of the right to life in domestic law.
4. A violation of Article 14 in relation to each claim under Article
2.
Article 3
5. A violation of Article 3 in relation to his brother's
disappearance.
6. A violation of Article 3 in relation to the applicant's inability
to discover what has happened to his brother.
7. A violation of Article 14 in relation to each claim under Article
3.
8. A violation of Article 3 on account of discrimination on grounds
of race or ethnic origin, in relation to both the applicant and his
brother.
Article 5
9. A violation of Article 5 in relation to his brother on account
of his unlawful detention, of him not being informed of the reasons for
his arrest, not being brought before a judicial authority within a
reasonable time and not being able to bring proceedings to determine
the lawfulness of his detention; these violations result in a complete
lack of security of the person.
10. A violation of Article 14 in relation to each claim under Article
5.
Article 13
11. A violation of Article 13 on account of the lack of any
independent national authority before which these complaints can be
brought with any prospect of success.
Article 14
12. A violation of Article 14, in conjunction with Articles 2, 3 and
5, on account of an administrative practice of discrimination on
grounds of race or ethnic origin.
Article 18
13. A violation of Article 18 because the interferences in the
exercise of the Convention rights are not designed to secure the ends
permitted under the Convention.
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) his brother's detention 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 and the refusal of the State to admit
that they are holding the applicant's brother in detention;
(d) alternatively, the applicant and his family have done
everything they can do to exhaust domestic remedies by submitting a
petition to the Prosecutor of the Diyarbakir State Security Court; the
fact that it has yielded no result confirms the ineffectiveness of any
alleged remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 May 1994 and registered on
9 May 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 case.
The Government's observations were submitted on 2 January 1995
after the expiry of the extension in the time-limit on 4 December 1994.
The applicant submitted observations in reply on 8 March 1995.
THE LAW
The applicant complains of the taking into custody, the detention
and subsequent disappearance of his brother. He invokes Article 2
(Art. 2) (the right to life), Article 3 (Art. 3) (the prohibition on
inhuman and degrading treatment), Article 5 (Art. 5) (the right to
liberty and security of person), Article 13 (Art. 13) (the right to
effective national remedies for Convention breaches), Article 14
(Art. 14) (the prohibition on discrimination) and Article 18 (Art. 18)
(the prohibition on using authorised Convention restrictions for
ulterior purposes) of the Convention.
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 contend that the applicant has not instituted any
legal proceedings either by making a complaint to the public
prosecutor, as opposed to a request for information, or by making a
claim for damages in the administrative courts. They refer in the
latter context to Article 125 of the Constitution, and to Article 1 of
Law 2935 of the State of Emergency and Article 8 of Decree 430.
The applicant submits that he has brought his allegations to the
attention of the public prosecutor and that no action has been taken.
In light of the outright denial that his brother has been taken into
custody or removed, he submits that any further action would be
ineffective. He claims that any notionally available remedies are
generally ineffective having regard, inter alia, to the lack of genuine
and thorough investigations, no real attempt to prosecute those
allegedly responsible for violations of the Convention or Turkish law
and the attitude of legal unaccountability of the security forces. He
also states that he is frightened of the consequences of initiating
legal proceedings 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 applicant has
approached the Chief Prosecutor in the State Security Court at
Diyarbakir who, not finding the applicant's brother on the list, orally
rejected the petition. While the Government point out that a request
for information is not the same as a formal complaint, the Commission
is not satisfied that, where the authorities deny that a person is in
their custody, the further step of registering an official complaint
of disappearance would serve any practical or effective function.
The Commission has had regard also to its finding in a number of
other cases (eg. Akdivar and others v. Turkey, No. 21893/93, Dec.
19.10.94) that it cannot be said at this stage that the applicant's
fear of reprisal if he pursues his complaints more vigorously is wholly
without foundation.
The Commission consequently finds that in the circumstances of
this case the applicant can be regarded as having brought his
complaints before relevant and competent authorities and that,
accordingly, he is 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 applicant 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 the applicant's brother has been taken
into custody or detained. They allege that he is a suspected member of
the PKK and is wanted by the authorities in connection with the killing
of five teachers.
The applicant maintains his account of events.
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