AS TO THE ADMISSIBILITY OF
Application No. 26974/95
by Hatun Dirlik
against Turkey
The European Commission of Human Rights sitting in private on
16 October 1995 , the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
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
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
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 25 January 1994
by Hatun Dirlik against Turkey and registered on 4 April 1995 under
file No. 26974/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, born in 1935,
resides in Switzerland. She is represented before the Commission by
Professor Kevin Boyle and Ms. Françoise Hampson, both university
teachers at the University of Essex.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On the evening of 30 July 1993, the press, television and radio
accounts carried an official press release that the military had
engaged that day in an operation in the Nurhak mountains. Nineteen PKK
members were reported to have been killed in a clash between the
security forces and terrorists. The applicant's claim is that the PKK
group were incinerated by napalm dropped from aircraft.
Following the incident of 30 July 1993 the bodies of the nineteen
PKK members were taken off the mountain on a tractor by the military
and brought to Mardin state hospital. The bodies were photographed
clothed, either at the scene of the incident or at the hospital. They
were placed naked one on top of the other in a cellar and later in the
hospital morgue. Persons who saw the bodies in the cellar or in the
morgue of the hospital, describe them as being so badly burned as to
be unrecognisable from their facial features, even to relatives. The
applicant was unable to recognise her son's body when it was
disinterred from a mass grave along with another body, although she was
informed by the authorities that one was the body of her son Sexo. She
is, however, certain that her son was one of the group killed. Another
mother could only recognise her daughter by the feature whereby her
right toes had been crossed over from birth. One relative recognised
his brother by a broken lower front tooth. No autopsies were carried
out on the bodies.
Bodies which were not claimed within a few days were buried in
a mass grave in Kahramanmaras cemetery by the municipal council. Male
and female bodies were said to have been buried together. The
applicant, who heard about the incident through the media, came to
Maras on 2 August and found that her son had been buried. She was
brought to the graveyard and shown a freshly created grave and told
that it was where her son was buried. The officials disinterred two
bodies from the grave. She states that it was impossible to recognise
either of them. She and other villagers nevertheless took them away
and gave them proper burial at her village of Kuracay.
On 3 September 1993 the then MP for Adiyaman, joined by other
colleagues from the DEP political party, called for an enquiry into the
Nurhak mountain incident on 30 July, to determine if chemical or
biological weapons had been used as was widely believed. The MP
invoked Articles 98 and 102 of the Constitution as well as the internal
rules of the assembly in his call for an inquiry. He is no longer a
member of parliament following the closure of the DEP party and has
fled Turkey. The Grand Assembly did not institute an enquiry, as
requested by the DEP members.
COMPLAINTS
The applicant complains, in her own name and on behalf of her
son, of violations of Articles 2, 3, 9, 13 and 14 of the Convention.
As to Article 2, she claims that the manner of the death of her
son violated the Convention. The use of intentional force under
Article 2 was more than absolutely necessary for a legitimate purpose
under its paragraph 2.
As to Article 3, she submits that the burning to death of human
beings through the use of a chemical weapon such as napalm constitutes
a form of torture.
As to Article 9, she argues that the burial of her son in a mass
grave was a violation of her right to manifest her religious beliefs
and customs as a Moslem.
As to Article 13, she submits that there was no effective remedy
for her complaints of violations of the Convention.
As to Article 14, she complains of discrimination on grounds of
race and/or ethnic origin in the enjoyment of the rights guaranteed by
Articles 2, 3 and 9 of the Convention.
The applicant maintains that there is no requirement that she
pursue domestic remedies because the actions of civil and military
authorities (refusal of an autopsy, the hasty burial of most of the
victims, etc.) taken together show that the possibility of challenging
their actions before any domestic forum would be a futile step.
PROCEDURE BEFORE THE COMMISSION
The first complaint relating to the incident referred to above
was submitted to the Commission in a letter of 25 January 1994. In that
letter the applicant was indicated as being Ms. Hatice Gezer, mother
of one of the persons killed during the armed encounter on
30 July 1993.
However, Hatice Gezer's complaint was not pursued, and no power
of attorney signed by her was submitted to the Commission. Instead, the
application submitted on 6 March 1995 mentioned as applicant Ms. Hatun
Dirlik. The application was registered on 4 April 1995.
THE LAW
The applicant complains, in her own name and on behalf of her
son, of the killing of him by napalm in an armed encounter with the
security forces. She invokes Article 2 (Art. 2) (the right to life),
Article 3 (Art. 3) (the prohibition on inhuman and degrading
treatment), Article 9 (Art. 9) (the freedom to manifest a person's
religion), Article 13 (Art. 13) ( the right to effective national
remedies for Convention breaches) and Article 14 (Art. 14) (the
prohibition of discrimination) of the Convention.
The Commission recalls however that the purposes of the six
months rule imposed by Article 26 (Art. 26) of the Convention is to
promote security of law and to ensure that cases raising issues under
the Convention are dealt with within a reasonable time. Furthermore it
ought also to protect the authorities and other persons concerned from
being under any uncertainty for a prolonged period of time (cf.
No. 10626/83, Dec. 7.5.85, D.R. 42, p. 205).
The Commission notes that, in the applicant's opinion, there is
no effective domestic remedy in respect of the violations of the
Convention of which she complains. It also observes that the public
authorities were aware of the incident at latest on 30 July 1993, and
they did not carry out any investigation with regard to this matter.
The Commission has repeatedly held that, in the absence of
domestic remedies, the six months' period runs from the act complained
of in the application (cf. No. 10530/83, Dec. 16.5.85, D.R. 42, p. 171,
and No. 10389/83, Dec. 17.7.86, D.R. 47, p. 72). In the instant case,
the acts complained of took place in July and August 1993.
The Commission considers furthermore that an MP's request to the
Turkish Grand Assembly for an investigation does not constitute an
effective remedy.
In view of these various elements, and assuming that there were
no effective domestic remedies which the applicant was required to
exhaust, the Commission considers that the application should have been
introduced not later than January - February 1994. However, the
application in the name of Hatun Dirlik was introduced on March 1995
and is therefore inadmissible under Articles 26 and 27 para. 3
(Art. 26, 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
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