AS TO THE ADMISSIBILITY OF
Application No. 25704/94
by Hamsa ÇIÇEK
against Turkey
The European Commission of Human Rights sitting in private on
26 February 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
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
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 8 November 1994
by Hamsa Çiçek against Turkey and registered on 17 November 1994 under
file No. 25704/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 February 1995 to communicate the
application;
- the observations submitted by the respondent Government on
16 June 1995 and the observations in reply submitted by the
applicant on 15 August 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1930 and lives in Dernek, Lice District, Diyarbakir province. She is
represented before the Commission by Professor Kevin Boyle and Ms.
Françoise Hampson, both university teachers at the University of Essex.
The facts as submitted by the parties may be summarised as
follows:
The applicant states that the following occurred:
On the morning of 10 May 1994 at about 06.00 a.m., soldiers,
connected with the Lice District Gendarme Command, raided the
applicant's village. They drove close to the village and then had to
proceed on foot because it had rained in the night and the village was
muddy. There were over 100 soldiers.
Some of the soldiers went round each house, woke up the
inhabitants and told them to assemble by the village mosque, bringing
their identity cards with them. About 400 villagers gathered by the
mosque. The soldiers took the identity cards of the male villagers and
told the women to return home. The women took their children and
returned home, leaving the men waiting by the mosque.
The applicant did not see what happened next but, according to
the accounts of male villagers who were present, the men's ID cards
were checked according to a list. Then the names were called out one
by one, the ID cards were returned and the villagers were sent home.
When the names of R. A., F. F., M. Ö., M. D. and Ali ihsan Çiçek (the
applicant's son) were called out, their ID cards were not returned to
them and they were told to leave the group and to wait on one side. The
ID card of Tahsin Çiçek (another son of the applicant) was initially
returned but he was immediately called back and sent to join the other
five people.
The soldiers left, taking the six people into custody. Witnesses
said that the soldiers took the six people in custody to Lice Regional
Boarding School. It is alleged that Tahsin and Ali Ihsan Çiçek and R.
A. were tortured there.
It appears that, on the second day of their custody, the soldiers
separated Tahsin and Ali ihsan Çiçek from the others. They said to the
others, "We have released those two, we are going to release you as
well." On the following day, the other four people were released and
they returned home. They were surprised not to find Tahsin and Ali
ihsan Çiçek there because they had been told that they had also been
released.
About 20 days following the taking of her sons into custody, the
applicant went to speak to a villager who had been released from Lice
Regional Boarding School, where she believed her sons had been
detained. She spoke to him about his period in custody. He said that
almost everyone in custody there suffered torture. She explained that
her sons were in custody there and asked whether he had seen them. She
described them. He said that two brothers had been in custody at the
same time as he was and they were the right age. A short time after
this, the applicant met another villager who had been released from
custody at Lice Regional Boarding School about a month previously. She
described her sons to him and asked whether or not he had seen them.
He said that he had only seen Tahsin. Tahsin had been in a bad
condition due to the torture he had suffered. Later, the villager had
been taken with Tahsin to Lice District Gendarme Command but he had not
seen him again.
The applicant has been told by witnesses that on 27 May 1994,
Tahsin's son Çayan (i.e. her grandson) was taken away by security
forces whilst he was sitting in the garden at the family home. Çayan
is partially sighted; he cannot see at all at night and can only see
about 1 metre in front of him in daylight.
The applicant has made many applications concerning her sons and
grandson. She went to Lice District Gendarme Command on two occasions
and asked about their whereabouts. She was told that neither they, the
district governor nor the leader of the council could do anything. The
applicant is elderly, lives in a village and cannot speak Turkish. This
limits the enquiries which she can make. She got her daughter, Feride
Çiçek, who lives in Diyarbakir, to submit verbal petitions to the Chief
Prosecutor of the Diyarbakir State Security Court. Feride Çiçek did
this on 20 July 1994. She was given a verbal reply to the effect that
her brothers and nephew (i.e. the applicant's sons and grandson) were
not in custody.
The respondent Government state the following:
No operation organised by the security forces took place in the
village of Dernek on 10 May 1994. The applicant's sons Tahsin and Ali
Ihsan Çiçek and her grandson Çayan were not taken into custody by the
the Gendarmarie of the Lice District.
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 6,
8, 13, 14 and 18 of the Convention.
As to the Article 2 she alleges that the unacknowledged detention
of her sons and grandson is life-threatening because there exists a
high incidence of deaths in custody, some as a result of torture. She
also complains of the lack of any effective state system for ensuring
protection of the right to life.
As to Article 3 she refers to her inability to discover what has
happened to her sons and grandson. She also complains of discrimination
on grounds of ethnic origin.
As to Article 5 she refers to the unlawful detention of her sons
and grandson, the failure to provide information as to the reasons for
their detention, of her sons and grandson not being brought before a
judicial authority within a reasonable time and not being able to bring
proceedings to determine the lawfulness of their detention.
As to Article 13 she alleges that there is a lack of any
independent national authority before which her complaints can be
brought with any prospect of success.
As to Article 14 the applicant alleges that her sons and grandson
have been discriminated against on the ground of their Kurdish origin
in the enjoyment of their rights under Articles 2, 3, 5 and 13 of the
Convention.
As to Article 18 she alleges that the interferences referred to
above with the exercise of Convention rights are not designed to secure
the ends permitted under the Convention.
The applicant maintains that there is no requirement that she
pursue alleged domestic remedies.
According to her, any alleged remedy is illusory, inadequate and
ineffective because:
a) the detention of her sons and grandson was officially organised,
planned and executed by agents of the Government;
b) there is an administrative practice of not respecting the rule
under Article 13 of the Convention which requires the provision of
effective domestic remedies;
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 Government to admit
that the security forces are holding the applicant's sons and grandson
in detention;
d) the applicant and her family have done everything possible to
exhaust domestic remedies by making enquiries at the Lice District
Gendarme Command and by submitting a petition to the Public Prosecutor
of Diyarbakir.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 November 1994 and registered
on 17 November 1994.
On 20 February 1995 the Commission decided to communicate the
application to the Government and ask for written observations on the
admissibility and merits of the application.
The Government's observations were submitted on 16 June 1995
after the expiry of the extension in the time-limit on 9 June 1995. The
applicant's observations in reply were submitted on 15 August 1995. The
Government were asked for a further clarification on a specific matter
but did not answer within the time-limit.
THE LAW
The applicant complains of the taking into custody, the detention
and the subsequent disappearance of her two sons and a grandson. She
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 Commission notes that the Government raised no objection as
to non-exhaustion of domestic remedies.
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.
It follows that the application cannot be rejected on the ground
that the domestic remedies have not been exhausted.
As regards the merits
The Government deny that any operation organised by the security
forces took place in the village of Dernek on 10 May 1994. They submit
that the applicant's two sons and grandson were not taken into custody
by the Gendarmerie of the Lice District. They cast doubt on the
credibility of the applicant's allegations in that the applicant has
not adduced any corroborative evidence to support them. They submit
that the statements submitted to the Commission in support of the
allegations were extracted or fabricated by extrajudicial means.
The applicant maintains her account of events which, she states,
is supported by direct evidence and the information given by
eyewitnesses. She refutes the Government's submission that her
statements were extracted or fabricated.
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) (S. TRECHSEL)
Full & Egal Universal Law Academy