AS TO THE ADMISSIBILITY OF
Application No. 23184/94
by K.S.
against Turkey
The European Commission of Human Rights sitting in private on
3 April 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 15 December 1993
by K.S. against Turkey and registered on 11 January 1994 under file
No. 23184/94;
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
27 September 1994 and the observations in reply submitted by the
applicant on 23 November 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, born in 1939,
lives in Diyarbakir. She 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.
The applicant resided at Islam village, Kulp District, Diyarbakir
Province. On or about 16 June 1993, at around 07.00 or 08.00,
approximately 400 soldiers under the control of the Kulp Gendarme
Commander, Recep Cömert, made a raid on the 100 household village.
First the house of H.I.A. was set on fire together with all his goods.
The soldiers later came to the applicant's house and ejected her
together with her two children. They gathered all the goods in one
room, poured petrol over them and set them on fire. Recep Cömert, after
having waited for the house to burn down completely, turned to the
villagers who had gathered around the applicant's house and said: "if
you don't leave this village we'll burn all your houses without
blinking an eye, and we will make you perish inside them".
On or about 26 June 1993, the soldiers returned and burnt down
other houses. They also burnt down the only mill of the village which
was owned by the applicant and three other villagers. When the
villagers tried to put out the fires they were beaten by the soldiers
with clubs and truncheons. The applicant was not present on this
occasion but was told of events by her partner in the mill.
Following the destruction of her house, the applicant was forced
to move away from the village and is now living with a married daughter
in Diyarbakir.
The Government indicate that on communication of the application
by the Commission in April 1994 the public prosecutor of Kulp district
initiated a preliminary investigation into the alleged raids, which
investigation is still pending. On 21 June 1994, the applicant made a
statement to the public prosecutor pursuant to his request.
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 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 alleges violations of Articles 3, 5, 6, 8 and 13
of the Convention, and Article 1 of Protocol N° 1, all combined with
violations of Article 14 of the Convention. In addition, she alleges
that the respondent Government is in violation of Article 18 of the
Convention.
The applicant states that she has not sought to exhaust local
remedies because the raid in question in this case was executed by the
security forces and that on the facts as alleged by her no remedy could
be effective or adequate for the purposes of Article 26 of the
Convention. She notes that H.I.A., another villager whose house has
been burnt down, did make an application and complaint to the Kulp
District Governor but his complaint has remained unanswered.
The applicant invokes and relies on the arguments in support of
the claims of violations of the Convention advanced in Applications
Nos. 21893/93, Akduvar v. Turkey, and 21895/93, Cagirga v. Turkey (both
declared admissible on 19 October 1994). She also invokes and relies
on the arguments made in these two applications concerning the question
of domestic remedies and Article 26 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 December 1993 and registered
on 11 January 1994.
On 5 April 1994, 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 27 September 1994
after one extension in the time-limit and the applicant's observations
in reply were submitted on 23 November 1994.
On 8 December 1994, the Commission refused the Government's
request to adjourn the examination of the case pending the
investigation by the public prosecutor and requested them to submit any
further observations which they might wish to make by 23 January 1995.
THE LAW
The applicant alleges that on or about 16 June 1993 State
security forces attacked her village, destroying her house with its
contents, and that on or about 26 June 1993 soldiers returned and
destroyed other houses, including a mill owned by the applicant and
other villagers. She further alleges that, in connection with these
events, she and other villagers were forced to evacuate the village.
She 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), Article 14 (Art. 14)
(prohibition against 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).
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 has failed to complain to
the competent judicial authorities and point out that there is a
pending investigation before the public prosecutor of Kulp district.
The applicant maintains that there is no requirement that she
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 if they pursue remedies; 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 she had at her disposal adequate remedies under
the state of emergency to deal effectively with her 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 that 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 had 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. 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.
As regards the merits
The Government have not presented any observations on the merits
of the case.
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 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) (C.A. NØRGAARD)
Full & Egal Universal Law Academy