AS TO THE ADMISSIBILITY OF
Application No. 22677/93
by Salih CETIN
against Turkey
The European Commission of Human Rights sitting in private on
9 January 1995, the following members being present:
MM. H. DANELIUS, Acting President
C.L. ROZAKIS
F. ERMACORA
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
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. M. DE SALVIA, Deputy 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 25 August 1993 by
Salih CETIN against Turkey and registered on 28 September 1993 under
file No. 22677/93;
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 March 1994 and the observations in reply submitted by the
applicant on 4 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, born in 1948
and living at Kulp Caglayan Derecik. He 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.
A. The particular circumstances of the case
The applicant, who is a farmer, had built his house two years ago
and had opened a grocer's shop in one corner of it. It was situated in
Derecik, a hamlet of the Caglayan village, Kulp.
The applicant claims that the following events occurred.
In or about the autumn of 1992, the mayor of his village was
given orders by a sergeant from the Kulp Central Gendarmes station to
evacuate the village. The mayor refused. He was told by the officer
that if he had not left with the inhabitants in two weeks, the village
would be burnt to the ground. The police, it appears, began to set
fire to a neighbouring village, Citik, and this caused panic among the
inhabitants of Derecik. There was a mass evacuation to other villages
and to the city of Diyarbakir. But those villagers, including the
applicant, who could not find residence or shelter elsewhere returned
to Derecik after two weeks.
On 4 March 1993, the State security forces opened fire on the
village. The applicant's house and shop, with their contents were
destroyed. This resulted from shells fired at the house setting it on
fire. A total of 18 out of 50-55 households in the village were
rendered completely uninhabitable. The applicant lost a tractor, 25-30
beehives and the goods in his grocer's shop. He estimates his loss at
300-350 million Turkish lira.
The remaining inhabitants, including the applicant, fled from the
village following the attack.
With the help of the Human Rights Association in Diyarbakir the
applicant has tried to obtain compensation but without success. He made
a petition to the State of Emergency Regional Governor but was referred
to the Provincial Governor and, finally, to the Kulp District Gendarmes
Commander HQ, which was the unit alleged to be responsible for the
burning incident.
The respondent Government state that Derecik is in an area
troubled by the activities of the PKK (Workers' Party of Kurdistan -
an armed separatist movement) and that the security forces routinely
are called upon to maintain order and to protect the lives and property
of ordinary citizens. In that context, the Government state that on 4
March 1993 the security forces attached to the Kulp gendarmerie carried
out a search in the area of the village with the purpose of arresting
any members of the PKK.
Following the commmunication of the application to the Government
in December 1993, the public prosecutor of Kulp has commenced an
investigation into the alleged incident.
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 Government assert that 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."
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 deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to oblige someone through force or threats to commit or not to
commit an act (Article 188),
- to issue threats (Article 191),
- to make an unlawful search of someone's home (Articles 193 and
194),
- to commit arson (Articles 369, 370, 371, 372), or aggravated
arson if human life is endangered (Article 382),
- to commit arson unintentionally by carelessness, negligence or
inexperience (Article 383), or
- to damage another's property intentionally (Article 526 et seq.).
For all these 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).
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.
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. These councils are made up of civil servants.
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 destruction of his home,
possessions and livelihood by military action and about the failure of
the Turkish legal system to compensate him for that damage. He alleges
violations of Articles 3, 6, 8, 14 and 18 of the Convention and Article
1 of Protocol No. 1.
As to Article 3, the applicant complains of the deliberate
uprooting of a community of which he is a part, by threat and
destruction of his home, which in his opinion constitutes inhuman
treatment. He further submits that this treatment was directed at him
by reason of his race or ethnic origin as a Kurd. He also refers to
the Emergency Rule of Law Regulations as being incompatible with
Article 3.
As to Article 6, he complains of the absence of a fair and
impartial tribunal for the determination of his civil rights. He
states that he has in vain attempted to petition the authorities and
to obtain redress. Moreover, there has been no criminal investigation
of the acts at issue, including the destruction of property. No civil
claim is possible to pursue against the security forces, unless there
has been a successful criminal prosecution.
As to Article 8, he complains of the destruction of his home by
the actions of the security forces shelling and setting it on fire.
As to Article 14, he claims to be a victim of discrimination in
the enjoyment of his rights under Articles 3, 6 and 8 of the Convention
and Article 1 of Protocol No. 1, by reason of his being a Kurd.
As to Article 18, he considers that the restrictions on his
rights, including the destruction of his home and business stock and
possessions, have been imposed for purposes which are incompatible with
the Convention. He was removed from his village and his property and
possessions were destroyed because he and the other residents were
Kurdish civilians. The assumed objective was to frighten and
intimidate them from offering forms of support to the PKK and to deny
the PKK access to villages, these purposes being alien to the
Convention system.
As to Article 1 of Protocol No. 1, he complains that all his
property and possessions were destroyed deliberately by the security
forces. He states that the shelling of a residence cannot be in the
public interest and if it is not in violation of Turkish law, it is
incompatible with the Convention. The destruction of property involved
in this case is also in breach of the "general principles of
international law".
The applicant adds that the present case is an instance of a
systematic and arbitrary expulsion of people and the destruction of
their livelihood and habitat. He considers that there is an
administrative practice of violation in this regard of Articles 3, 6
and 18 of the Convention and Article 1 of Protocol No. 1.
As regards exhaustion of domestic remedies, the applicant refers
to existing emergency powers to evacuate, move or combine villages,
hamlets and similar centres of population either temporarily or
permanently. No procedure is provided for obtaining redress or
compensation in the case of forced evacuations. Nevertheless, the
applicant tried to petition the authorities, and his petition was in
the end referred to the unit responsible for the burning incident,
which shows that it is pointless to try to exhaust domestic remedies
or to apply to administrative offices.
Furthermore, he considers that any domestic remedies are
illusory, inadequate and ineffective. As to the reasons why he
considers that there are no effective remedies, he refers to arguments
presented in another application to the Commission (No. 21893/93,
Akduvar and others v. Turkey, Dec. 19.10.94).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 August 1993 and registered
on 28 September 1993.
On 29 November 1993, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 23 March 1994
after one extension in the time-limit and the applicant's observations
in reply were submitted on 15 June 1994.
THE LAW
The applicant alleges that on 4 March 1993 State security forces
launched a gun attack on his village. He claims that his house and shop
with their contents were destroyed and he and the other remaining
inhabitants forced to evacuate the village. The applicant invokes
Article 3 (Art. 3) of the Convention (the prohibition on inhuman and
degrading treatment), Article 6 (Art. 6) (the right of access to
court), Article 8 (Art. 8) (the right to respect for family life and
the home), Article 14 (Art. 14) (the prohibition against
discrimination) and Article 18 (the prohibition on using authorised
Convention restrictions for ulterior purposes), 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 applicant failed to exhaust domestic remedies;
ii. the application is an abuse of the right of petition.
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. They contend that the applicant had a number of remedies
at his disposal which he did not try.
In respect of damage alleged to have been caused by the State,
the Government submit that the applicant had the possibility of
introducing an administrative action before the administrative courts
for compensation in accordance with Article 125 of the Turkish
Constitution. Claims for compensation could also have been lodged in
the ordinary civil courts.
The Government submit also that the acts alleged by the applicant
have no lawful authority under emergency legislation or decrees and
would constitute punishable criminal offences under both criminal and
military law, in respect of which complaints could be lodged with the
competent civil and military authorities.
The applicant states that he tried to obtain compensation and
that he made a petition to the State of Emergency Regional Governor
but was referred to the Provincial Governor and, finally, to the Kulp
District Gendarmes Commander HQ. He further maintains that there is no
requirement that he pursue domestic remedies. Any purported remedy is
illusory, inadequate and ineffective since, inter alia, the operation
in question in this case was officially organised, planned and executed
by the agents of the State. None of the remedies suggested by the
Government could be regarded as effective, in the applicant's view,
because the scale of destruction of villages, as well as the expulsion
and creation of internal refugees, is so great in South-East Turkey
that this must be considered high-level Government policy - an
administrative practice -in regard to which all remedies are
theoretical and irrelevant.
Further, the applicant submits that, whether or not there is an
administrative practice, domestic remedies are ineffective in this case
having regard, inter alia, to the situation in South-East Turkey which
is such that potential applicants have a well-founded fear of the
consequences; the lack of genuine investigations by public prosecutors
and other competent authorities; the absence of any cases showing the
payment of adequate compensation to villagers for the destruction of
their homes and villages, or for their expulsion; and the lack of any
prosecutions against members of the security forces for the alleged
offences connected with the destruction of villages and forcible
expulsions.
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 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 the applicant that it has not
been established that he had at his disposal adequate remedies under
the state of emergency to deal effectively with his complaints.
The Commission refers to its findings in Application No.
21893/93, Akduvar and others v. Turkey (Dec. 19.10.94) which concerned
similar allegations by the applicants of destruction of their village
and forcible expulsion. In that case, the Commission noted that it was
a known fact there has been destruction of villages in South-East
Turkey with many people displaced as a result. While the Government had
outlined a general scheme of remedies that would normally be available
for complaints against the security forces, the Commission found it
significant that, although the destruction of houses and property has
been a frequent occurrence in South-East Turkey, the Government had not
provided a single example of compensation being awarded to villagers
for damage comparable to that suffered by the applicants. Nor had
relevant examples been given of successful prosecutions against members
of the security forces for the destruction of villages and the
expulsion of villagers.
The Commission considered that it seemed unlikely that such
prosecutions could follow from acts committed pursuant to the orders
of the Regional Governor under the state of emergency to effect the
permanent or temporary evacuation of villages, to impose residence
prohibitions or to enforce the transfer of people to other areas. It
further had regard to the vulnerability of dispossessed applicants,
under pressure from both the security forces and the terrorist
activities of the PKK and held that it could not be said at this stage
that their fear of reprisal if they complained about acts of the
security forces was wholly without foundation.
The Commission concluded that in the absence of clear examples
that the remedies put forward by the Government would be effective in
the circumstances of the case, the applicants were absolved from the
obligation to pursue them.
In the present case, the Government have not provided any
additional information which might lead the Commission to depart from
the above conclusions. The Commission also has had regard to the
applicant's information that he tried to obtain compensation and lodged
a petition with the authorities, but without success. The present
application cannot, therefore, be rejected for non-exhaustion of
domestic remedies under 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 applicant rejects the Government's submission, contending
that his complaints relate to alleged violations of the Convention,
which have not formally been brought before the local instances for
fear of reprisal.
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 while security forces were present in
in the applicant's village on 4 March 1993 the operations conducted
aimed at searching for members of the PKK who were to be arrested. The
Government have not otherwise commented on the substance of the
applicant's complaints which it states are now under investigation by
the public prosecutor following the communication by the Commission of
the application.
The applicant maintains his account of events and points out that
the Government have not in fact disputed that the applicant's home and
property were destroyed and the village set alight.
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.
Deputy Secretary to the Commission Acting President of the Commission
(M. DE SALVIA) (H. DANELIUS)
Full & Egal Universal Law Academy