ORHAN v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 25656/94

                        by Salih ORHAN

                       against Turkey

     The European Commission of Human Rights sitting in private on

7 April 1997, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs.  M. HION

           MM.   R. NICOLINI

                 A. ARABADJIEV

           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 November 1994

by  Salih Orhan against Turkey and registered on 30 November 1994 under

file No. 25656/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

FACTS

     The applicant, a Turkish national of Kurdish origin, was born in

1955. He lives in the village of Adrok, in the Kulp district of

Diyarbakir. He is represented before the Commission by Mr. Kevin Boyle

and Ms. Françoise Hampson, both university teachers at the University

of Essex, England.

     The facts, as submitted by the parties, may be summarised as

follows:

A.   Particular circumstances of the case

1.   Events prior to the introduction of the application

     The applicant makes the following submissions:

     On 20 April 1994 a detachment of the Turkish security forces

numbering between three and four hundred men with over one hundred

vehicles pitched camp near the village of Adrok. On 6 May 1994 at

around 6 a.m. a number of the soldiers entered the village. The village

imam announced that the Unit Commander of the security forces required

the villagers to assemble in front of the mosque, which they did.

     The Commander then announced that the village was to be burnt

down but that he would allow the villagers to remove their possessions.

The applicant returned to his house and started to remove his

possessions. He was unable to complete this task before the soldiers

moved in and burnt his house down. Having completed the burning the

soldiers moved on.

     On the following day the applicant, together with other

villagers, went to the town of Kulp to report this incident to the

gendarmerie and seek permission to stay in the area long enough to at

least harvest the crops. The applicant was told that the soldiers in

question had come from Bolu and that it would be alright for him and

the other villagers to remain until the harvest.

     On 24 May 1994 more soldiers were seen in the vicinity of the

village. All except three of the men from the village hid. These three

men were Salih Orhan and Hasan Orhan, the applicant's two brothers, and

Cezayir Orhan, the applicant's son. They were in the process of

rebuilding the houses in the village and did not notice the arrival of

the soldiers. Each of the three men was taken into custody by the

soldiers. One of the arresting soldiers explained the arrest in the

following terms : "The Commander wants to see you. We don't know the

way. You can come back to the village after showing us the way."

     At around 4.30 p.m. the same day, the soldiers and the

applicant's brothers and son were seen in Gümüssuyu village. The three

men were smoking cigarettes with the soldiers and were fine. They went

from there to Kulp. None of the three men has been seen or heard of

since, although the applicant has taken the following steps in

attempting to locate them:

     On 25 May 1994 he went to Zeyrek police station and enquired

about their whereabouts. A certain Mr. A.P. told him that the three men

had been taken to Kulp.

     The applicant accordingly applied to the Commander of the

Gendarmerie in Kulp and, after gaining no satisfactory answers, made

formal applications for assistance to the Kulp Prosecutor, the State

Security Court Prosecutor for Diyarbakir, the State of Emergency

Regional Governor and the Public Order High Command in Diyarbakir.

     Approximately one month after their disappearance the applicant

was informed that his two brothers had been held at a school taken over

by the security forces in Lice. The information came from Ramazan

Ayçiçek, himself a detainee at Lice prison. Ayçiçek stated that prior

to his transfer to the prison he had himself been detained at the

school and it was then that he had seen the applicant's three

relatives. He told the applicant that all of them appeared to be "in

a bad way".

     No news of any of the three men has been received since and there

has been no response to the complaint made in respect of the burning

of the applicant's house.

     The respondent Government make the following submissions:

     The State Security Court Prosecutor for Diyarbakir carried out

an investigation into the applicant's allegations concerning the

detention of his relatives by the security forces. The investigation

concluded that Salih Orhan, Hasan Orhan and Cezayir Orhan were not

taken into custody by the security forces during an operation of 14 May

1994. The Government refer to the letters dated 22 July 1994 and 20

October 1994 from the Commander of the Gendarmerie in Kulp and the

Diyarbakir Chief of Police, respectively. These letters, which were

addressed to the Kulp Prosecutor, state that the persons in question

were not taken into custody by these security units.

     It was only after the Commission decided to communicate the

application that the Public Prosecutor was for the first time informed

about the applicant's allegations concerning the destruction of his

property.

     The Public Prosecutor's investigation is still pending.

2.   Events subsequent to the introduction of the application

     On 11 August 1995 the respondent Government enclosed a statement

made by the applicant to the Diyarbakir Public Prosecutor on 2 May

1995. The statement contained, inter alia, the facts which the

applicant had submitted to the Commission in relation to the burning

of his house and the disappearance of his relatives. According to the

statement, the applicant did not want to bring his allegations before

an international authority. He was seeking redress from the Turkish

authorities. He never intended to issue a letter of authorisation for

his legal representatives to bring his case before the Commission. He

had been made to sign the letter of authorisation in the Diyarbakir

Branch of the Human Rights Association without any explanation as to

the nature of this document.

     In response the applicant's legal representatives made the

following contentions:

     - The above-mentioned statement was made under pressure;

     - No communication has been received from the applicant to the

effect that he did not wish to pursue his application;

     - The applicant has given oral instructions that he wishes to

continue with his application before the Commission.

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."

     Any illegal act by civil servants, be it a crime or a tort, which

causes material or non-material 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 by the

Social Help and Solidarity Fund.

     Criminal procedures

     The Turkish Criminal Code makes it a criminal offence to subject

someone to torture or ill-treatment (Article 243 in respect of torture

and Article 245 in respect of ill-treatment inflicted by civil

servants).  As regards unlawful killings, there are provisions dealing

with unintentional homicide (Articles 452, 459), intentional homicide

(Article 448) and murder (Article 450). There are also provisions

covering threats (Article 191), unlawful deprivation of liberty

(Article 179 in general and Article 181 for civil servants), obliging

someone through force or threats to commit or not to commit an act

(Article 188).

     In general, in respect of 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

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

not to institute criminal proceedings.

     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 legislative decrees and enacted between 12

September 1980 and 25 October 1983. That includes Law no. 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 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 which are subject to the state of emergency,

with the effect that the power to prosecute members of the security

forces is removed from the public prosecutor and conferred on local

administrative councils.

     Article 8 of Decree 403 of 16 December 1990 provides as follows :

     "No proceedings on grounds of criminal, financial or legal

     responsibility may be brought 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 individuals

     to claim compensation from the State for damage suffered by them

     without justification."

COMPLAINTS

     The applicant complains of violations of Articles 2, 3, 5, 8, 13,

14 and 18 of the Convention and Article 1 of the First Protocol.

     As to Article 2, he refers to the substantial risk that his two

brothers and son have been secretly detained by agents of the state,

and to the high incidence of deaths in custody, some as a result of

torture. He also complains of the lack of any effective state system

for ensuring protection of the right to life.

     As to Article 3, he refers to his inability to discover what has

happened to his son and his brothers. He also complains of

discrimination on grounds of ethnic origin.

     As to Article 5, he refers to the unlawful detention of his two

brothers and son, the failure to inform him of the reasons for their

detention, and the failure to bring them before a judicial authority

within a reasonable time and the inability to bring proceedings to

determine the lawfulness of their detention.

     As to Article 8, he complains that the destruction of his

property represents a clear infringement of his rights to private life,

his home and correspondence.

     As to Article 13, he alleges that there is no independent

national authority before which his complaints can be brought with any

prospect of success.

     As to Article 14, the applicant alleges that he, his brothers and

his son have been discriminated against on the ground of their Kurdish

origin in the enjoyment of their rights under Articles 2, 3, 5 and 8

of the Convention and Article 1 of the First Protocol.

     As to Article 18, he alleges that the interferences with the

exercise of his Convention rights referred to above were not designed

to secure the ends permitted under the Convention.

     As to Article 1 of the First Protocol, the applicant refers to

the destruction of his home and property.

     The applicant maintains that there is no requirement that he

pursue alleged domestic remedies.

     According to him, any alleged remedy is illusory, inadequate and

ineffective because:

a)   there is strong evidence that disappearances in custody are

frequent and that they have received official tolerance ;

b)   there is an administrative practice of not respecting the rule

under Article 13 of the Convention which requires the provision of

effective domestic remedies;

c)   whether or not there is an administrative practice, domestic

remedies are ineffective in this case, both as regards the destruction

of his house and the disappearance of his brothers and son, owing to

the failure of the legal system to provide redress;

d)   he has done everything possible to exhaust domestic remedies by

submitting petitions and requests.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 24 November 1994 and registered

on 30 November 1994.

     On 27 February 1995 the Commission decided to communicate the

application to the Government and request written observations on the

admissibility and merits of the application.

     The Government's observations were submitted on 13 June 1995.

The applicant submitted observations in reply on 7 August 1995. The

Government provided further information on 11 August 1995 and the

applicant replied on 3 January 1996.

THE LAW

     The applicant alleges that on 6 May 1994 State Security forces

attacked his village, destroying his house and its contents, and that

on 24 May 1994 the soldiers returned to the village and took the

applicant's two brothers and son into custody, after which his brothers

and son have disappeared. He invokes Article 2 (Art. 2) (the right to

life), Article 3 (Art. 3) (prohibition on inhuman and degrading

treatment), Article 5 (Art. 5) (the right to liberty and security of

person), Article 8 (Art. 8) (the right to respect for private and

family life, home and correspondence), Article 13 (Art. 13) (the right

to effective national remedies for Convention breaches), Article 14

(Art. 14) (prohibition on discrimination) and Article 18 (Art. 18) (the

prohibition on using authorised Convention restrictions for ulterior

purposes) as well as Article 1 of the First Protocol (P1-1) to the

Convention (the right to property).

     Alleged abuse of the right of petition

     The Government submit that the applicant did not intend to file

an application before the Commission. They claim that the Diyarbakir

Human Rights Association is taking advantage of the illiteracy of the

applicant and other potential applicants. They allege that the

Association is collecting statements with a view to substantiating

compensation claims against the State and that these statements are in

fact being sent to the Kurdistan Human Rights Project which is

transforming them into applications before the Commission.

     The applicant's lawyers deny this allegation. They state that the

applicant has given them oral instructions that he wishes to continue

with his application before the Commission.

     The Commission notes that the applicant is aware that an

application has been lodged on his behalf before the Commission and

that no evidence has been received from the applicant confirming that

he wishes to discontinue his application. In the circumstances, there

are no grounds for rejecting the application at this stage of the

proceedings, as constituting an abuse of the right of petition within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     Exhaustion of domestic remedies

     The Government submit that the application is inadmissible since

the applicant 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 after receiving the information

transmitted by the Governmental authorities following the applicant's

application to the Commission, the Diyarbakir Public Prosecutor started

a preliminary investigation into his allegations. In this context, on

2 May 1995 the applicant made a statement to the Diyarbakir Public

Prosecutor. The file was transferred to the Kulp Public Prosecutor and

the investigation is still pending.

     The applicant submits that he has brought his allegations to the

attention of the public prosecutor and that no action has been taken.

In light of the outright denial that his brothers and son have been

taken into custody or removed, he submits that any further action would

be ineffective. He claims that any nationally available remedies are

generally ineffective having regard, inter alia, to the lack of genuine

and thorough investigations, no real attempt to prosecute those

allegedly responsible for violations of the Convention or Turkish law

and the attitude of legal unaccountability of the security forces. He

also states that he is frightened of the consequences of initiating

legal proceedings in South-East Turkey.

     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,  Eur. Court H.R., Akdivar judgment of 16 September

1996, p. 16, para. 68, and Nos. 14116/88 and 14117/88, Sargin and Yagci

v. Turkey, Dec. 11.05.89, D.R. 61 p. 250, 262).

     The Commission notes the applicant's statement that in the

present case he applied to a number of public authorities complaining

that his relatives had been taken into custody and disappeared. In

particular, he approached the Chief Prosecutor in the State Security

Court at Diyarbakir who carried out an investigation concluding that

the applicant's relatives had not been taken into custody by the

security forces during an operation of 14 May 1994. The Commission

considers that, as regards the detention and disappearance of the

applicant's brothers and son, the applicant was not required to take

any further action in order to comply with Article 26 (Art. 26) of the

Convention.

     As regards the destruction of property complaint, the Government

submit that the application is inadmissible since the applicant failed

to exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention before lodging an application with the Commission. They

point out that in a state of emergency the State have a discretion to

grant homes to the victims of terrorist attacks and those who have left

their domicile in the south-east region. Pursuant to the above the

Government state that the applicant requested a home and that these

proceedings are still pending.

     The applicant maintain that the purported remedies are

ineffective for the following reasons:

-    the Government are imprecise as to the stage reached in the

     investigation;

-    they make no statement as to the potential outcome of, or remedy

     available from, any such investigation.

     The Commission notes that, while there is apparently a scheme for

providing dispossessed persons in the south-east region with homes, the

applicant has not benefited from this scheme, although a considerable

time has elapsed since the events in May 1994.  The Commission leaves

it open whether or not an application under this emergency scheme could

in certain circumstances be regarded as a remedy within the meaning of

Article 26 (Art. 26) of the Convention, since in any case it does not

appear that it was effective in the present case.

     The Commission further refers to the Court's judgment in the case

of Akdivar v. Turkey (judgment of 16 September 1996) and considers

that, for the same reasons as in that case, the applicant's complaint

of the destruction of his home and property cannot be rejected for non-

exhaustion of domestic remedies.

           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 and that, consequently, the

application cannot be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

     As regards the substance of applicant's complaints

     The Government, referring to a military operation on 14 May 1994,

state that the applicant's brothers and son were not taken into custody

on that occasion. They submit that the complaints represent nothing

more than an attempt at propaganda coordinated by the Kurdistan Human

Rights Project.

     The applicant maintains his account of events which he states is

supported by direct evidence and information given by eye witnesses.

     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.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

 

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