AS TO THE ADMISSIBILITY OF
Application No. 22275/93
by ismet GÜNDEM
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 7 July 1993 by
ismet GÜNDEM against Turkey and registered on 19 July 1993 under file
No. 22275/93;
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, was born in
1955 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 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 7 January 1993, at about 10.30h, the Turkish security forces,
consisting of approximately 200 soldiers and 150 village protectors
carried out the first of two raids, involving violence against property
and persons in the hamlet of Kaniya Meheme, which is situated in
Sarierik village near Diyarbakir.
The applicant was present in the village during the attack on
7 January 1993. The village had 15 households in 14 of which were
members of his extended family. During the raid, the security forces
gathered the villagers in one place. They beat some of the villagers,
verbally abused and swore at others, including children. They used
heavy weapons to shoot at the houses. They broke down doors and windows
and they "mixed up" all the winter provisions, so that they became
inedible. They also destroyed household goods in a number of houses.
Before they left, they stated that if they found the villagers there
the second time they came they would burn the village.
On 13 February 1993, the security forces and village protectors
returned to the village at about 05.00h. The forces attacked the
village, firing their guns into the air. The soldiers did not enter the
village but surrounded it. About 50 village protectors entered the
village and fired at the houses for about 20 minutes. Women and
children were taken from the houses which were then destroyed. Some of
the women and children were beaten with fists and rifle butts. Threats
were made that if the villagers did not leave the village within 24
hours, the village would be demolished.
Most of the houses were damaged and rendered unusable. The
applicant's house was damaged with the doors and windows broken and
everything inside destroyed.
In these circumstances, the applicant and the other villagers
fled to Diyarbakir.
It is claimed by the applicant that over 1000 villages have been
evacuated in a similar way and that many villages have been destroyed
since 1990. Over 1 million people have been displaced without
alternative accommodation or livelihood and without compensation.
The respondent Government acknowledge that Turkish security
forces were in operation in the village of Sarierik near Diyarbakir
between 7 and 13 February 1993. They state that the operations
conducted at that time were aimed at impeding the activities of the
militants from the PKK (Workers' Party of Kurdistan - an armed
separatist movement), maintaining order and protecting the villagers
and their property.
The applicant did not make any complaint to the authorities
concerning the destruction of his home and property and the expulsion
from the village, alleging a fear of reprisal. Following however the
communication of the applicant's complaints to the Government by the
the Commission in October 1993, the public prosecutor of Hasro
commenced an investigation into the events in question.
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.
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 3, 5, 6, 8, 13
and 18 of the Convention and Article 1 of the First Protocol.
He states that, for fear of reprisals, he has been unable to seek
to challenge or complain to the authorities about the measures taken
against him. Furthermore, he considers that any domestic remedies are
illusory, inadequate and ineffective.
As to the precise nature of his complaints and the reasons why
he considers that there are no effective remedies, he refers to
arguments presented in two other applications to the Commission (Nos.
21893/93 and 21895/93).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 July 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 4 May 1994. The applicant submitted further
information on 14 September 1994.
THE LAW
The applicant alleges that on 7 January 1993 and 13 February 1993
State security forces launched a gun attack on his village. He claims
that the soldiers and village protectors shot at the villagers, damaged
their homes, destroying the contents, and forced them to evacuate the
village. The applicant invokes Article 3 (Art. 3) of the Convention
(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) 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 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 also 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 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. This 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 in
operation in the village between 7 and 13 February 1993, the operations
conducted at that time were aimed at impeding the activities of the
militants from the PKK, maintaining order and protecting the villagers
and their property. 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.
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