AS TO THE ADMISSIBILITY OF
Application No. 22280/93
by Mahmut DEMiR
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 21 June 1993 by
Mahmut DEMiR against Turkey and registered on 19 July 1993 under file
No. 22280/93;
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 11 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1961 and lives at Diyarbakir. He is represented before the Commission
by Professor Kevin Boyle and Ms. Françoise Hampson, both university
teachers at the University of Essex.
The applicant states that he brings the application in his own
name and in the name of his niece Dilek Demir (killed), his niece Dilan
Demir (killed), his father Yusuf Demir (killed) and his uncle Salih
Demir (wounded).
The facts as submitted by the parties may be summarised as
follows.
A. The particular circumstances of the case
The applicant claims that the following events occurred.
On a day or days over the weekend of 19-22 December 1992, Turkish
security forces and local village "protectors" acting under the control
of the security forces entered the village of Tepecik near the town of
Kocaköy, Diyarbakir. This raid, which extended over several days,
followed an incident in which a member of the PKK-supporting militia
and a "protector" had been killed.
On 19 December 1992 members of the security forces threw four
hand grenades into the house of the applicant's father Yusuf Demir.
There were three explosions. Yusuf Demir and the applicant's uncle
Salih Demir were wounded, and the applicant's nieces Dilek Demir and
Dilan Demir were killed. Yusuf Demir died later from his wounds.
The Government forces took away two tractors belonging to Yusuf
and Salih Demir; one was shot to bits and the other was burned.
At about 8.00 on 22 December 1992 "protectors" arrived from other
villages by car. Five of them began to fire on villagers in the village
square. They wounded a number of villagers.
Shortly afterwards members of the Turkish security forces and
more "protectors" arrived in the village and began to set fire to most
of the village houses one by one. Meanwhile, acting in groups of 5 or
10, they forced the villagers who were fleeing from their burning
houses to lie on the ground, where they were beaten. Most of the
village livestock were killed. These activities continued until about
16.30, that is for some eight and a half hours.
During the attack, the villagers, including the applicant, lost
their homes and possessions and were obliged to leave the village. A
number of persons were taken into custody. The authorities refused the
applicant and the other villagers permission to bury the bodies of
those who had been killed. Instead, the bodies were brought to
Diyarbakir where they were buried.
The respondent Government state the following.
On 17 December 1992, violent fighting broke out near to the
village of Tepecik between armed militants of the PKK (Kurdish Workers'
Party - an armed separatist movement) and the security forces, during
which nine members of the PKK and one village protector died. The
security forces proceeded to carry out a search of the area between
19 and 22 December 1992. During the operation, several grenades
exploded in the house of the applicant, causing the death of Yusuf
Demir, Dilan Demir and Dilek Demir. In the course of the search, eight
people were arrested in connection with the events of 17 December 1992.
On 1 February 1993, the public prosecutor filed a criminal action
in the State Security Court at Diyarbakir, the indictment concerning
persons charged with belonging to an armed separatist movement who had
been arrested in connection with the operations mentioned above.
An inquiry has also been commenced in or about the end of 1992
by the public prosecutor of Diyarbakir concerning the deaths of persons
arising out of the events on 17 December 1992. It is still in progress.
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.).
The Turkish Criminal Code makes it a criminal offence to subject
some-one 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).
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.
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 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 he refers to the intentional deprivation of life
which he considers not to be attributable to any of the purposes
indicated in para. 2 of Article 2 or, alternatively, to it being
attributable to a use of lethal force disproportionate to any lawful
ground on which such force could be used. He also states that the
degree of force used was more than "absolutely necessary" to achieve
any legitimate purpose and that there was a failure adequately to
protect the right to life by initiating legal proceedings to determine
whether or not those responsible for the deaths acted unlawfully. There
was also, in his opinion, an inadequate protection of the right to life
in domestic law.
As to Article 3 he refers to the collective punishment of the
villagers of Tepecik, including himself.
As to Article 5 he refers to a breach of his right to the
exercise of liberty and the enjoyment of security of the person;
further, deprivation of his freedom of movement and liberty and
security of the person by arbitrary expulsion from his village through
a procedure not sanctioned by Article 5 para. 1; further, expulsion by
means not prescribed by law.
As to Article 6 he complains of failure to initiate proceedings
before an independent and impartial tribunal against those responsible
for the killings and injuries as a result of which he cannot bring
civil proceedings arising out of those events, this being a denial of
effective access to court.
As to Article 8 he refers to a violation of his right to family
life and respect for his home by reason of his arbitrary expulsion from
his village and the destruction of his home. He points out that the
expulsion did not pursue a legitimate aim under para. 2 of Article 8.
As to Article 13 he alleges that there is a lack of any
independent national authority before which his complaints can be
brought with any prospect of success.
As to Article 14 he alleges that he and his next of kin have been
discriminated against on the ground of their Kurdish origin in the
enjoyment of their rights under Articles 2, 3, 5, 6, 8 and 13 of the
Convention and Article 1 of the First Protocol.
As to Article 18 he refers to the destruction of his and the
other villagers' homes and livestock, their forced abandonment of their
village, home and livelihood for purposes incompatible with the
Convention.
As to Article 1 of the First Protocol the applicant refers to the
destruction of his father's home.
The applicant maintains that there is no requirement that he
pursue alleged domestic remedies.
According to him, any alleged remedy is illusory, inadequate and
ineffective because:
a) the operation which led to the killings in question in this case
was officially organised, planned and executed by agents of the State;
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;
d) whether or not there is an administrative practice, the situation
in South-East Turkey is such that potential applicants have a well-
founded fear of the consequences, should they invoke alleged remedies.
As regards observance of the six month rule, the applicant points
out that the killings took place on 19 December 1992 and, in the case
of Yusuf Demir, on a later date and that the destruction of property
took place on 19 and 22 December 1992, whereas the application was
introduced on 21 June 1993. The applicant considers that the
application was made within six months of the incident related by him
or, alternatively, that Saturday 19 and Sunday 20 June 1993 should not
be taken into account in calculating the six months or, alternatively,
that the material dates are 22 December 1992, further or alternatively
the date of the death of Yusuf Demir.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 June 1993 and registered on
19 July 1993.
On 11 October 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 10 March 1994
after one extension in the time-limit and the applicant's observations
in reply were submitted on 11 May 1994.
THE LAW
The applicant alleges that from 19 to 22 December 1992 his
village was subject to attack by State security forces. During the
raid, grenades were thrown into his house causing the death of his
father and two of his nieces and the injury of others. He claims that
villagers were shot and beaten, that the village livestock was
slaughtered and that two of the family's tractors were taken, one being
burned, the other destroyed. Houses were set on fire, and the
villagers, including the applicant, their homes and possessions
destroyed, were obliged to evacuate the village. The applicant invokes
Article 2 (Art. 2) of the Convention (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 6
(Art. 6) (the right of access to court), Article 8 (Art. 8) (the right
to respect for family life and the home), Article 13 (Art. 13) (the
right to effective national remedies for Convention breaches), Article
14 (Art. 14) (prohibition on discrimination) and Article 18 (Art. 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 has failed to exhaust domestic remedies;
ii. the application is an abuse of petition.
Exhaustion of domestic remedies
The Government argue that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention.
In respect of damage alleged to have been caused by the State or
its agents, the Government submit that the applicant had the
possibility of introducing an administrative action before the
administrative courts for compensation relying, inter alia, on Article
125 of the Turkish Constitution or Article 8 of Decree 430 of
16 December 1990.
The Government also submit that acts of torture or ill-treatment
by State agents are prohibited by the Criminal Code, in respect of
which complaints could be lodged with the competent authorities. The
Government further point out that a trial commenced concerning persons
arrested as members of an armed separatist movement at the time of the
incidents and that there is a pending investigation by the public
prosecutor into the deaths which occurred on 19 December 1992.
The applicant 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 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.
In respect of the trial and investigation referred to by the
Government, the applicant submits that the trial of alleged separatists
appears to have no relevance to the exhaustion of remedies by the
applicant and that there is no information as to how the alleged
pending investigation into the deaths is proceeding.
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.
As regards the allegations with regard to the destruction of the
applicant's village and its forced evacuation, the Commission refers
to its findings in Application No. 21893/93, Akduvar and others v.
Turkey (Dec. 19.10.94) which concerned similar complaints of the
destruction of homes and forcible expulsion. In that case, the
Commission noted that it was a known fact there had 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 like 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 in respect of remedies available in respect of
destruction of, and forcible evacuation from, villages.
As regards the applicant's complaints of the attack causing death
to members of his family, the Commission recalls that there is a
pending enquiry by the public prosecutor into the deaths which occurred
on 19 December 1992. It does not appear however that the investigation
which commenced in or about the end of 1992 has made any significant
progress. The Commission is not satisfied in view of the delays
involved that this inquiry can be considered as furnishing an effective
remedy for the purposes of Article 26 (Art. 26) of the Convention.
The Commission reiterates its finding in the context of the
Akduvar case (loc. cit.) 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 finds therefore that in the circumstances of this
case the applicant is not required to pursue any legal remedy
concerning the deaths of members of his family separate from the public
prosecutor's inquiry (see eg. No. 19092/91, Yagiz v. Turkey, Dec.
11.10.93, D.R. 75).
The Commission concludes that this application cannot 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 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 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.
Six month time-limit
The Commission has examined whether the applicant has complied
with the requirement imposed by Article 26 (Art. 26) of the Convention
that an application must be introduced within six months of the final
decision taken in respect of the complaints. The case-law of the
Commission establishes that where no domestic remedy is available, the
six month period runs from the act complained of (see eg.
No. 10530/83, Dec. 16.5.85, D.R. 42 p. 171).
In the present case, the Commission recalls that the applicant
complains of acts of the security forces which took place over a period
of several days, namely, 19-22 December 1992. The Commission found
above that the applicant has not been required to pursue domestic
remedies in light of their apparent ineffectiveness. In these
circumstances, the question arises whether the complaints insofar as
they relate to specific acts carried out on 19 December 1992 have been
introduced out of time, given that the application was introduced on
21 June 1993.
The Commission notes that the applicant's complaints arise out
of an operation conducted by the security forces over a period of days
which culminated in the forcible evacuation of the village by the
applicant and the other villagers. It further notes that the
applicant's father was not killed immediately on 19 December 1992 but
died later from his wounds. There is sufficient proximity in time,
location and nature of the acts complained to render them, for the
purposes of Article 26 (Art. 26) of the Convention, part of one event
or episode. The Commission has also had regard to the consideration
that it could not have been practicable for the applicant to take steps
to complain until the conclusion of the operation in the village. The
Commission accordingly considers that in the circumstances of the
present case the relevant date for the purposes of the six month time
limit should not be considered to be a date earlier than
22 December 1992.
It follows that the applicant's complaints have been introduced
within the six month time-limit imposed by Article 26 (Art. 26) of the
Convention.
As regards the merits
The Government submit that security forces were in operation in
or about the village from 19 to 22 December 1992 carrying out searches
pursuant to an armed clash between themselves and the PKK. They accept
that during the search of the village, grenades exploded in the
applicant's house killing three of his family. The Government have not
otherwise commented on the substance of the applicant's complaints
which it states are under investigation by the public prosecutor
insofar as they concern the deaths which occurred.
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.
Deputy Secretary to the Commission Acting President of the Commission
(M. DE SALVIA) (H. DANELIUS)
Full & Egal Universal Law Academy