AS TO THE ADMISSIBILITY OF
Application No. 23423/94
by M. Safi ARANACAK and Izzet MATYAR
against Turkey
The European Commission of Human Rights sitting in private on
13 May 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
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
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
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 24 January 1994
by M. Safi ARANACAK and Izzet MATYAR against Turkey and registered on
8 February 1994 under file No. 23423/94; 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
11 January 1995 and the observations in reply submitted by the
applicant on 20 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, Turkish citizens of Kurdish origin, were born in
1959 and 1933 respectively, and were residents of the village of
Ormaniçi (Ormandisi). They are represented before the Commission by
Professor Kevin Boyle and Ms. Françoise Hampson, both of the University
of Essex, England. The first applicant died on 13 January 1994.
The facts of the present case are in dispute between the parties.
A. Particular circumstances of the case
The applicants state as follows.
On 24 July 1993 at about 17.00 hours, the applicants' village,
Ormaniçi, was the subject of an armed attack by a large group of
village protectors, estimated at 80, from the neighbouring village of
Boyunlu, which is situated about 4-5 kilometres from Ormaniçi on the
other side of a mountain. The attack was instigated by the Silvan
Gendarme Headquarters and helicopter gunships under the direction of
the gendarmes were part of the attack.
In separate statements the applicants have given an account of
the details of the attack. They have described how the village
protectors threatened to burn the village, accusing the villagers of
supporting terrorists and how many villagers fled from the village or
hid among the trees. Two persons were shot and killed. The protectors
also shot at persons fleeing and helicopters were firing at them from
the air. In the first applicant's house, all the goods were burnt or
rendered unusable. The walls of the house were full of holes and the
windows were broken. In the second applicant's house, the goods inside
the house were untouched, but the walls of the house were full of holes
and all windows were broken. A diesel tank, an irrigation pump and
certain other property were damaged. Both applicants also state that
large quantities of crops or fruit were destroyed.
After the raid the captain in command of Silvan Central Gendarme
Station came to the village and declared that the village had been
burnt and destroyed by terrorists, and the villagers were also told to
say untruthfully that the raid had been effected by terrorists and that
those killed had been caught in crossfire between the protectors and
the PKK (Kurdish Workers' Party). A report was drawn up the Gendarme
commander stating that a clash had broken out between the PKK and the
security forces, that two people had been killed in the cross-fire and
that the village had been burnt and destroyed by terrorists. This
information was given to the Silvan public prosecutor and a similar
version of the events was also given on television. It became the
official version but is false.
The respondent Government state as follows.
A report dated 23 July 1993 by the gendarmerie district deputy
commander indicates that a clash had taken place on that day when three
temporary village guards from Boyunlu came across members of the PKK
resting by a stream. The PKK opened fire, wounding two of the guards.
The PKK fled towards the mountains via the village of Ormandisi and in
their flight they killed a 55 year old woman and a 10 year old boy in
the village. The PKK were pursued with the aid of a gendarmerie
commando unit, an armoured unit and a unit from a local gendarmerie
station. At 19.30 hours when it grew dark, contact was lost.
The Government have also provided a statement made by the
applicant Izzet Matyar on 29 September 1994 at the Silvan Gendarmerie
in which he states that his house and garden were not destroyed by the
security forces in the way alleged. They have submitted a second
statement by him to the same effect, dated 30 September 1994 taken by
the public prosecutor at Silvan and in which it is also stated that he
has made no complaint anywhere concerning these matters.
Following the communication of the application to the Government,
an investigation was opened by the Silvan public prosecutor (file No.
1994/486) into the allegations made by the applicants. The
investigation terminated on 3 October 1994 with a finding of
insufficient evidence.
The Government also state that the applicant M. Safi Aranacak
died on 13 January 1994 following an armed confrontation between the
security forces and the PKK which took place near the village of
Boyunlu. His family left the following week to live in Diyarbakir.
A report dated 13 January 1994 from the gendarmerie district
command reported that three temporary village guards were on patrol
when they met a group of 7-8 PKK members. A clash ensued in which two
PKK members, one of whom was later identified as M. Safi Aranacak, were
killed.
COMPLAINTS
The applicants complain of violations of Articles 3, 6, 8, 13,
14 and 18 of the Convention and Article 1 of Protocol No. 1.
As to Article 3, they consider that the subjection of them and
their families to the experience of an armed attack and the experience
of being forced to flee for their lives for fear of death at the hands
of the guards and gendarme forces constitutes inhuman treatment.
As to Article 6, they consider that the attack on their homes and
possessions constitutes a clear interference with their civil rights.
However, the falsification of the facts makes it impossible for them
to pursue any remedy or to obtain compensation in court. Nor will there
be any prosecution of those responsible for the attack.
As to Article 8, they complain that the attack on their homes and
families constitutes an interference with their right to respect for
their home and family life, for which there is no justification under
Article 8 para. 2.
As to Article 13, they complain that there is an administrative
practice of violation of that Article in South-East Turkey, and they
refer to the arguments put forward in Application No. 21895/93, Cagirga
v. Turkey. They add that the falsification of the facts about the
attacks on the village offers clear evidence of a practice of
deliberately frustrating the possibilities of remedies for victims who
are Kurds.
As to Article 14, the applicants consider that they have been
discriminated against because they are Kurds in the enjoyment of their
rights under Articles 3, 6 and 8 of the Convention and Article 1 of
Protocol No. 1. They again refer to the arguments presented in regard
to Application No. 21895/93, Cagirga v. Turkey.
As to Article 18, they allege that the restrictions on all the
rights they have complained of have been imposed for purposes
incompatible with the Convention.
As to Article 1 of Protocol No. 1, they complain of the damage
to their homes, goods and crops. They add that there is no possibility
of compensation in view of the official falsification of the facts
which led to the destruction.
As to the exhaustion of domestic remedies, the applicants submit
that there are no remedies possible to exhaust, since the attack was
carried out by security forces and the villagers were then intimidated
and threatened into accepting a deliberately false account of the raid.
Consequently, it is impossible for them to have their account of what
happened listened to or acted upon by anyone in authority. The
applicants further state that the right to an effective remedy is
violated in South-East Turkey and that there is an administrative
practice in this regard.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 January 1994 and registered
on 8 February 1995.
On 6 July 1994, the Commission decided to communicate the
application to the Turkish Government, who were invited to submit their
observations on its admissibility and merits before 12 November 1994.
At the Government's request, this time-limit was subsequently extended
until 12 December 1994. The Government's observations were sent on 11
January 1995. Observations in reply were submitted on behalf of the
applicants on 20 March 1995.
On 10 April 1995, the Commission decided to invite the parties
to provide further information relating to the apparent death of M.
Safi Aranacak and the circumstances in which Izzet Matyar allegedly
made statements to the gendarmerie and the public prosecutor concerning
this application.
The applicants' representatives responded by letter of 30 May
1995, stating, inter alia, that they had been unable to obtain a
written statement from the widow of M. Safi Aranacak regarding the
continuation of the application. The Government responded by letter
dated 7 July 1995, after an extension in the time-limit set for that
purpose.
The applicant's representatives made further submissions by
letter of 13 October 1995, explaining, inter alia, that they had still
not obtained any written authorisation from M. Safi Aranacak's widow.
By letter dated 10 November 1995, the Government provided further
information.
By letter dated 26 February 1996, the applicants' representatives
informed the Secretariat that they had not succeeded in making contact
with Mrs. Aranacak despite numerous efforts and that they were
accordingly not in a position to furnish the requisite letter of
authority.
THE LAW
The applicants complain that the security forces carried out a
raid on their village during which their homes and property were
destroyed. They invoke Article 3 (Art. 3) of the Convention (the
prohibition on inhuman and degrading treatment), 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 in the enjoyment of Convention
rights) 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 (peaceful enjoyment of
possessions).
The Government have objected to the admissibility of these
applications:
1. in respect of the first applicant, M. Safi Aranacak, they
dispute the validity of the application in light of his death;
2. in respect of the second applicant Izzet Matyar, they dispute
the validity of the application in light of his statements to the
gendarmerie and the public prosecutor;
3. in any event, they consider that the applicants have failed
to exhaust domestic remedies as required by Article 26 (Art. 26)
of the Convention.
A. Application made in the name of M. Safi Aranacak
The Government point out that the application made in the name
of M. Safi Aranacak makes no reference to the fact that he had in fact
died some time previously. They submit that the authenticity of the
application is seriously in doubt and it should be struck out.
The applicants' representatives state that this applicant came
to the Human Rights Association (HRA) on 28 July 1993 and made a
statement, also signing a letter of authority authorising an
application to be made in his name. They state that a lawyer from the
HRA had spoken to the widow of this applicant who wanted the
application to continue but that as she had moved address they had been
unable to contact her further with a view to obtaining a letter of
authority.
The Commission notes that the applicants' representatives have
provided a letter of authority signed by M. Safi Aranacak and dated 29
July 1993, together with a statement of allegations dated 28 July 1993.
However, it appears that these documents were sent to the Commission
by the applicants' representatives under cover of letter dated 21
January 1994. It now appears, and is accepted by the applicants'
representatives that M. Safi Aranacak had been killed on 13 January
1994 before the introduction of his application.
The Commission finds it unnecessary to determine whether or not
the application introduced on behalf of M. Safi Aranacak is a valid
exercise of the right of individual petition under Article 25 (Art. 26)
of the Convention. The Commission's case-law indicates that the
continuation of an application introduced by an applicant who has died
depends on the intentions expressed by his successor (see eg. No.
12526/86, dec. 7.1.91, D.R. 68 p. 104).
There have been numerous examples where the widow of an applicant
has been found able to continue an application in place of the deceased
(see eg. No. 10828/84, dec. 6.10.88, D.R. 57 p. 5). While it may have
been possible for the wife of M. Safi Aranacak to apply to continue the
application, the Commission notes that, despite a considerable lapse
of time, the applicants' representatives have been unable to obtain a
letter of authority from Mrs. Aranacak and appear to have been unable
to trace her whereabouts.
In these circumstances, the Commission finds that it is unable
to pursue the examination of the complaints made on behalf of M. Safi
Aranacak due to the lack of any appropriate person to continue it. It
finds no indication which would justify any suspicion that the
applicant's death was connected with the introduction of this
application. In the circumstances of this case, it finds that no issue
arises relating to respect for human rights which would require the
examination to continue pursuant to Article 30 para. 1 (Art. 30-1) in
fine.
It follows that this part of the application must be struck off
the Commission's list of cases pursuant to Article 30 para. 1 (a)
(Art. 30-1-a) of the Convention.
B. Concerning the second applicant Izzet Matyar
1. Validity of the application
The Government have submitted statements taken by the gendarmerie
and by the public prosecutor from Izzet Matyar to the effect that his
house, garden and fields were not burnt and destroyed as alleged and
that he has not made any complaint about such matters. The statements
were given freely by the applicant without any oppression or coercion.
They submit that this establishes the complete lack of authenticity of
the present complaints and that the applicant's representatives cannot
claim to be pursuing a genuine application.
The applicant's representatives have stated that there is serious
doubt, supported by the evidence in other applications, that the
statements obtained from the applicant by various state authorities can
be regarded as a representation of his true wishes or a true account
of the events of 24 July 1993. They allege that the applicant made
these statements under intimidation and duress and that he has
expressed his wish to continue with his application before the
Commission.
The Commission notes that the application submitted to it
contains a power of attorney in favour of the applicant's
representatives and a statement of facts and complaints, both of which
contain the applicant's signature. It further notes that the applicant
has not effectively denied that he signed these documents. The
statements relied on by the Government refer in general terms to a
denial of any complaint being made. This cannot be regarded as a clear
or express statement rejecting the authenticity of the petition made
in his name to European Commission of Human Rights. The Commission
accordingly concludes that there is insufficient basis for it to
conclude that the application lodged in his name by the named
authorised representatives was not a valid exercise of the right of
individual petition under Article 25 (Art. 25) of the Convention.
The Commission has also considered whether, notwithstanding the
above finding, the statements can be construed as the expression of
the applicant's wish to discontinue the application and thus disclose
a ground on which the application should be struck from its list of
cases. It recalls that pursuant to Article 30 para. 1 (a)
(Art. 30-1-a) of the Convention it may proceed to strike a case from
its list where circumstances lead to the conclusion that an applicant
does not wish to pursue his or her petition.
The Commission has had regard to the serious nature of the
complaints made in this application with regard to the raid on the
applicant's village and the destruction of his property. It has also
noted with concern the grave allegations made by the applicant's
representatives in regard to intimidation of the applicant. It further
notes the Government's emphatic denial of these allegations as
unsubstantiated. It considers however that where there exists a doubt
as to the voluntariness of a withdrawal of an application it would run
counter to the efficacy of the system of protection of human rights set
up under the European Convention of Human Rights for the Commission to
discontinue its examination of the case (see also Kurt v. Turkey, No.
24276/94 dec. 22.5.95). It recalls that in the case of Akdivar and
others v. Turkey (No. 21893/93, Comm. Rep. 26.10.95) pending before the
Court) it noted with concern that applicants or persons thought to be
applicants had been directly asked about their applications and been
presented with statements to sign declaring in effect that no such
applications had been brought. The Commission commented in that context
that it considered that it was inappropriate for the domestic
authorities to approach applicants and to question them about their
applications in the absence of their legal representatives and that in
that case the Turkish authorities had hindered the effective exercise
of the applicants' right of individual petition. In the current state
of this application and given the equivocal statements relied on by the
Government, the Commission finds that doubts as to the voluntariness
of any purported intention to withdraw the application cannot be
excluded at this stage.
Further, even assuming that the circumstances might disclose an
intention on the part of the applicant voluntarily to withdraw the
application, having regard to Article 30 para. 1 (Art. 30-1) in fine,
which provides that the Commission shall continue the examination of
a petition if respect for human rights as defined in the Convention so
requires, the Commission does not find it appropriate to strike the
case from the list of its cases at the present time.
2. Exhaustion of domestic remedies
The Government submit that the second 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 second applicant has failed
to apply for compensation before either the administrative or civil
courts and that no complaint has been made before the public
prosecutor.
The second 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, should they pursue domestic 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 as 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 second 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 Akdivar and others v.
Turkey (No. 21893/93, 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 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 part of the 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.
3. As regards the merits
The Government have made no comment on the substance of the
second applicant's complaints but have submitted materials concerning
a clash between security forces and the PKK which took place in the
area of the village on 23 July 1993, a report of that date from the
gendarmerie stating that PKK members fled through the village and
killed two persons. They have also submitted statements signed by the
second applicant which deny that his property suffered any damage.
The second applicant's representatives maintain the account of
events given by him in the introduction of the application. They refer
to the lack of precision in official reports as regards the damage
which occurred in the village in or about that date and the lack of any
apparent detailed investigation into the events.
The Commission considers, in the light of the parties'
submissions, that the second applicant's complaints raise 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 this part of 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
DECIDES TO STRIKE OUT the complaints made on behalf of the first
applicant M. Safi Aranacak;
by a majority
DECLARES ADMISSIBLE the complaints made by the second applicant
Izzet Matyar, 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