AS TO THE ADMISSIBILITY OF
Application No. 25754/94
by Mehmet HARAN
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 11 November 1994
by Mehmet Haran against Turkey and registered on 22 November 1994 under
file No. 25754/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 27 February 1995 to communicate the
application;
- the observations submitted by the respondent Government on
11 August 1995 and the observations in reply submitted by the
applicant on 4 October 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish national, is a farmer in the village of
Agilli in Lice. He submits the application in his own name and on
behalf of his deceased son. 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 states that the following occurred:
The applicant used to live in the Çelebi hamlet of Agilli village
in Lice. Some time ago the applicant's house, with other houses in the
hamlet, was burned down by security forces.
The applicant then settled in Agilli village, near to his hamlet
which had been destroyed, and his son Vahdettin Haran settled in Lice
district.
On 12 May 1994 Vahdettin Haran had come to Agilli village in
order to help prune the applicant's vines. During the day, gendarmes
and soldiers arrived at the village and collected all the villagers
together in the school grounds. They then started to burn the houses.
The applicant heard soldiers saying: "We can only overcome terrorism
by burning all the villages and driving the people away from the
region."
At about 11 am, as houses were still being burned, the applicant
heard the sound of gunshots coming from his vineyard. Because he was
surrounded by gendarmes and soldiers, he could not go to look. It
appeared that the whole area around the village was under the control
of the gendarmes and soldiers.
The gendarmes and soldiers left later in the day. In the evening
villagers who came from the direction of the vineyard said that the
gendarmes had taken someone away with them and gone towards Lice. The
applicant feared that this might have been Vahdettin Haran, but did not
have the courage to go to the vineyard to look.
On the morning of the following day, 13 May 1994, the applicant
sent his other children to the vineyard. When they arrived there, they
found Vahdettin Haran's corpse.
Later on 13 May 1994, the applicant went to Lice and reported the
killing to the Lice State Prosecutor. The State Prosecutor told the
applicant that he would not be able to come to the village as it would
be too dangerous for him, but that an autopsy would be made if the body
could be brought to Lice.
The applicant took the body of Vahdettin Haran to Lice and an
autopsy was carried out by the State Prosecutor. No information or
official documents were given to the applicant.
Initially, the applicant and his friends were not even permitted
to take the body away, but later officials from the State Prosecutor's
office said that the applicant could collect the body, provided not
more than two people came. The applicant arranged the burial of
Vahdettin Haran at the village.
The respondent Government state as follows.
On 12 May 1994 an official autopsy was conducted on the body of
Vahdettin Haran. The autopsy report indicated that the death was caused
by bullet wounds.
On 6 June 1994 the Public Prosecutor of Lice initiated a
preliminary investigation into the death of Vahdettin Haran. The
investigation is still pending.
B. Relevant domestic law and practice
The Turkish Criminal Code contains provisions dealing with
unintentional homicide (Articles 452, 459), intentional homicide
(Article 448) and murder (Article 450).
For criminal 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 authoritites. The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding, pursuant to Article 148 of the Code of
Criminal Procedure, whether a prosecution should be initiated.
COMPLAINTS
The applicant considers that there have been violations of
Articles 2, 3, 6 and 14 of the Convention.
The applicant complains of a violation of Article 2 of the
Convention on account of the intentional killing of his son by the
security forces. He also alleges a violation of this provision on
account of the inadequate protection of the right to life in domestic
law.
The applicant complains of a violation of Article 3 of the
Convention on account of the grief and torment amounting to inhuman and
degrading treatment suffered by him as a result of the death of his
son.
The applicant alleges a violation of Article 6 of the Convention
on account of the failure to institute proceedings before a tribunal
against those responsible for the killing of his son, as a result of
which the applicant cannot bring civil proceedings arising out of these
events.
The applicant also considers that there have been violations of
Article 14 of the Convention in conjunction with Articles 2, 3 and 6
of the Convention, since only Turkish citizens of Kurdish origin are
regularly exposed to violations of the Convention of the kind referred
to.
The applicant's arguments about exhaustion of domestic remedies
are as follows:
The applicant maintains that there is no requirement that he
pursue alleged domestic remedies. Any alleged remedy is in his opinion
illusory, inadequate and ineffective because:
a) there is every reason to believe that the operation which led to
the killings in question in this case were executed by agents of the
State;
b) there is strong evidence that such acts have been repeated, and
that they have received official tolerance; in such circumstances,
there is an administrative practice giving rise to a presumption that
the local remedies are not effective;
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.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 November 1994 and registered
on 22 November 1994.
On 27 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 11 August 1995
after one extension in the time-limit. The applicant's observations in
reply were submitted on 4 October 1995.
THE LAW
The applicant alleges that his son was killed in circumstances
for which the State is responsible. He invokes Article 2 (Art. 2) (the
right to life), Article 3 (Art. 3) (prohibition on inhuman and
degrading treatment), Article 6 (Art. 6) (the right of access to court)
and Article 14 (Art. 14) (prohibition on discrimination) of the
Convention.
Exhaustion of domestic remedies
The Government submit that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention before lodging an application
with the Commission.
The Government point out that the preliminary investigation
initiated by the Public Prosecutor of Lice into the killing of the
applicant's son is still pending.
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 killing of the applicant's son
was planned and executed by agents of the State. He refers to an
administrative practice of unlawful killings giving rise to a
presumption that the local remedies are not effective.
The applicant further argues that, 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.
In respect of the investigation by the Public Prosecutor of Lice,
the applicant submits that the Public Prosecutor has had adequate time
to complete his investigation and that the file is simply being left
open with no ongoing inquiries being conducted.
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. 11.5.89, D.R. 61, pp. 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 to deal
effectively with his complaints.
The Commission notes that while the Government refers to the
pending inquiry by the public prosecutor into the death of the
applicant's son on 6 June 1994, almost one year and eight months have
elapsed since the killing and the Commission has not been informed of
any progress having been made in the investigation. In view of the
delays involved and the serious nature of the crime, the Commission is
not satisfied that this inquiry, in the prevailing circumstances, can
be considered as furnishing an effective remedy for the purposes of
Article 26 (Art. 26) of the Convention.
The Commission finds that in the circumstances of this case the
applicant is not required to pursue any other legal remedy in addition
to the public prosecutor's inquiry (see eg. No. 19092/91, Yagiz v.
Turkey, Dec. 11.10.93, D.R. 75, p. 207). The Commission concludes that
the applicant should be considered to have complied with the domestic
remedies rule laid down in Article 26 (Art. 26) of the Convention.
Consequently, the application cannot be rejected for non-exhaustion of
domestic remedies under Article 27 para. 3 (Art. 27-3) of the
Convention.
As regards the merits
The Government have not presented any observations on the
substance of the applicant's complaints beyond asserting that they are
under investigation by the public prosecutor of Lice.
The applicant maintains his account of the 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy