IPEK v. TURKEY

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25760/94
by Abdürrezak İPEK
against Turkey

The European Court of Human Rights, sitting on 14 May 2002 as a Chamber composed of

MrJ.-P. Costa, President,
MrGaukur Jörundsson,
MrR. Türmen,

MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 18 November 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Abdürrezzak İpek, is a Turkish national, who was born in 1942 and lives in Diyarbakır. He is represented before the Court by Mr Philip Leach, legal director at the Kurdish Human Rights Project, a non-governmental organisation based in London.

A.  The circumstances of the case

As the facts of the case are disputed between the parties, the facts as well as the documents submitted have been set out separately.

1. The facts as submitted by the applicant

On 17 May 1994 the applicant and his son İkram İpek were tending their sheep away from the village of Turalı when soldiers approached them and asked them for identification. After being shown identification, the soldiers went on their way. The applicant’s other son, Servet İpek, had good relations with soldiers from Lice and had even made tea for them on occasions.

On 18 May 1994 at about 10 a.m. the applicant, together with his son İkram İpek, was bringing his sheep back to their hamlet near Turalı village (in the official documents submitted by the Government the name of the village is recorded as ‘Türeli’), when a group of about 100 soldiers in uniform raided the village. The soldiers left their vehicles outside the village, and entered it on foot. They were armed with G-3 rifles and other weapons. A military helicopter circled above the village. The applicant has since learned that the soldiers were not from Lice, but from around Bolu. The Lice soldiers had told the applicant previously to be wary of the soldiers from Bolu.

The soldiers told the applicant and İkram İpek to gather with the other villagers, that is, all men, women and boys –the young girls were told to remain in the village– by the village school, which is located outside the village. The houses of the village cannot be seen from the school. One group of soldiers remained by the school, while the other went into the village.

The applicant saw flames rising from the village and his hamlet, and the women and children began to weep. The soldiers who were with them threatened them, saying: “If you start crying, we will burn you just like your houses”. All the villagers then went quiet.

Both the applicant’s and his brother’s houses were completely destroyed by fire. After most of the houses had been destroyed, the soldiers released the villagers. But they did not release the applicant’s sons İkram İpek and Servet İpek, or Seyithan, Abdülkerim, Nuri and Sait Yolar. These men went with the soldiers to the soldiers’ vehicles to carry the latter’s equipment.

When the applicant returned to the village, he saw that the houses were in flames. The young girls told him and the other villagers that the soldiers had thrown some white powder into the houses and set them alight. The fires were so far advanced that there was nothing the applicant could do.

Since a few of the houses had not caught fire, the applicant and the other villagers thought they could shelter in them.

At about 3.30 p.m., the same soldiers raided the village again. They asked why some of the houses had not burned. When the applicant and the other villagers replied; “we did not put them out, you cannot have lit them properly”, the soldiers said; "we shall burn them now”, and they burned the remaining houses. The applicant has since learned that the villages of Turalı and Makmu Kirami were also burned that day.

The applicant’s wife Fatma then asked the soldiers, in Kurdish, what had happened to her sons İkram İpek and Servet İpek. The soldiers could not understand Kurdish, and asked what she had said. When the applicant explained that she was asking about her sons, the soldiers said that they were in Lice, and that they would be released soon.

After this second burning, the soldiers waited in the village, and only left in the direction of Lice in the evening.

Since his own house had been burned, the applicant with his wife Fatma, his son Hakim, and Sevgol, the wife of his son İkram İpek, moved to a house which had been evacuated two years previously, in the hamlet of Kalenderesi, also attached to Turalı village. All they had left were the clothes they were wearing. Neighbours gave them a few more clothes. They remained there, in abject poverty, for some four months. The applicant has since moved to Diyarbakır. The Government have provided no aid or assistance to the applicant or his family since his house was burned.

Abdülkerim, Nuri and Sait Yolar, who had been taken into custody together with İkram and Servet İpek, were released the next day. They themselves did not speak to the applicant afterwards but informed him through a third person that they had been held together until 10 p.m. the first night, with their eyes bound. At 10 p.m. they were separated from İkram and Servet İpek and never saw the two brothers again. Seyithan Yolar remained with İkram and Servet İpek, and all three have been missing since then.

About 15 days after İkram and Servet İpek were taken into custody, and having heard nothing about their whereabouts, the applicant travelled to Diyarbakır. With the help of a relative, he applied to the office of the Diyarbakır National Security Court (Diyarbakır Devlet Güvenlik Mahkemesi, hereafter DGM) chief public prosecutor. He also applied to the Lice public prosecutor’s office and the Lice Gendarme command. The applicant was unable to obtain any information about his sons from any of these State authorities.

On 27 October 1994 the applicant filed another petition with the DGM chief prosecutor in Diyarbakır, asking him to investigate what had happened to his sons. The applicant was not permitted to meet with the prosecutor, but a plain-clothes policeman who was there looked at the records and told the applicant verbally that the individuals in question were not there.

The applicant’s other son, Hakim İpek, gave two or three petitions to the Governor of the State of Emergency. He received two replies consisting of denials that his brothers had ever been detained. He was so angry that he tore the letters up and disposed of the remains.

On 23 December 1999 the applicant went to the Kulp Gendarmerie Commander’s office upon invitation of the latter. He was asked where his sons were. The applicant stated that they had been taken away by the State. The Gendarmes accused him of lying, insisted that his sons had in fact been taken by the PKK, yelled at him, and asked him why he was complaining about the Turkish State. Under duress the applicant was obliged to apply his thumb print to documents prepared by the Gendarmes, the contents of which were not made known to him.

2. The facts as submitted by the Government

No security operation was conducted in Turalı village or in Dale hamlet on 18 May 1994. Neither the applicant’s sons nor any other persons had been taken into custody.

The applicant did file a petition with the DGM chief public prosecutor in Diyarbakır on 27 October 1994, stating that his sons Servet and İkram İpek had been taken into custody and requesting the prosecutor to investigate his sons’ fate. The chief public prosecutor asked the security forces whether the applicant’s sons had been taken into custody for an offence falling within the jurisdiction of DGMs. The security forces informed the prosecutor that this was not the case and the applicant was informed of this outcome.

The applicant made no applications concerning the alleged disappearance of his sons to the offices of the Lice public prosecutor or the Lice District Gendarmerie Commander. However, following the communication of the application to the Government, an ex officio investigation into the allegations was conducted by the Lice public prosecutor. It was not, however, possible to locate the applicant at the address given by the applicant in his application form submitted to the Commission. Moreover, the applicant was not known by the people living in the neighbourhood. His name was not registered in the registry of the head (Muhtar) of the neighbourhood.

The Government further stated that no evidence has been found during the investigation to prove that the alleged offences had been committed by the security forces and that the Lice District Administrative Council (Lice İlçe İdare Kurulu) had rendered a decision not to prosecute members of the security forces. It had not been possible to communicate this decision to the applicant as his address was not known to the authorities and the Lice Governor had therefore ordered the publication of the result of the investigation in a newspaper.

The Government finally stated that the applicant had been invited to the Kulp Gendarmerie Commander’s Office in order to make a statement as part of the administrative investigation in which the Kulp Gendarmerie Commander had been appointed as investigator. A statement was taken from the applicant on 23 December 1999 but the applicant was not questioned about his application to the Commission. A copy of this statement was not sent to the Court despite the Court’s request to the Government.

3. Documents submitted by the parties

The following information appears from documents pertaining to the investigation carried out following the communication of the present application to the respondent Government on 7 March 1995

(a)  The investigations instigated by the Diyarbakır and Lice prosecutors

On 25 April 1995 the Diyarbakır chief public prosecutor instructed the Diyarbakır police headquarters to summon the applicant to his office so that a statement could be taken from him. The address of the applicant recorded in this letter is the same as the one that was recorded in the application form with the exception of the name of the block of flats. According to the application form the name of the block of flats is ‘Varol’, but in the prosecutor’s letter the name was recorded as ‘Baro’.

On 2 May 1995 the Diyarbakır police informed the public prosecutor that there are no blocks of flats called Baro in the street indicated by him. This letter goes on to say that the applicant was not known by the people living in the neighbourhood and that his name was not registered in the registry of the head (Muhtar) of the neighbourhood.

On 18 May 1995 the commander of the Tepe gendarmerie station, in whose jurisdiction the Türeli village is located, recorded in a report that Abdülrezzak İpek and his family had left the village and gone to the town of Dörtyol near Hatay to work.

On 24 May 1995 the Diyarbakır chief public prosecutor sent a copy of the letter he had received from the International Law and Foreign Relations Directorate of the Ministry of Justice on 20 April 1995 to the Lice chief public prosecutor and asked him to investigate the applicant’s allegations that his house had been burnt down and that his sons had been taken away by the security forces.

On 7 June 1995 the Lice chief public prosecutor sent a letter to the gendarmerie commander of Lice and instructed the latter to confirm whether or not an operation had been conducted in Turalı village on 18 May 1995 and whether Servet and İkram İpek had been detained. He also asked the commander to find out the applicant’s address and summon the applicant to his, i.e. the prosecutor’s, office.

On 13 June 1995 the Lice prosecutor sent another letter to the Lice gendarmerie commander’s office and informed the latter that the name of the village was incorrectly recorded as ‘Turalı’ which was within the jurisdiction of the town of Hani. The prosecutor repeated his requests in his letter of 7 June 1995 and asked the gendarmerie commander to look for the applicant in the village of ‘Türeli’[1].

On 20 June 1995 the Lice gendarmerie commander replied to the prosecutor’s requests. The commander stated that the said persons had never been detained by his soldiers and that no operation had been conducted in the vicinity of Türeli village at that time. The commander finally stated that the applicant had moved to the town of Dörtyol in the province of Hatay to work.

On 21 June 1995 the Lice prosecutor took a decision of non-jurisdiction and sent the file to the office of the Lice district governor. This action was taken pursuant to the Law on the Prosecution of Civil Servants Memurin Muhakematı Kanunu) according to which authorisation must be sought to investigate the actions of the members of the security forces.

On 2 February 1996 the gendarmerie commander of Diyarbakır, in an apparent response to a request from the Lice governor’s office, appointed Turgut Alpı, a gendarmerie lieutenant-colonel, to investigate the applicant’s allegations.

(b)  The investigation carried out by Lieutenant-Colonel Alpı

On 28 February 1996 the newly appointed investigating lieutenant- colonel Alpı instructed the Lice gendarmerie commander to forward copies of the names and addresses of the military personnel who had been working in the area at the time of the incident. He further requested copies of all operation reports, operation logbooks, custody ledgers and any other relevant documents.

Also on 28 February 1996 the lieutenant-colonel Alpı instructed the Diyarbakır police headquarters to take a statement from one Abdurrezzak İpek about the allegations of village destruction and disappearances. According to this letter, Abdurrezzak İpek was born in 1959 and living in Diyarbakır.

The Diyarbakır police headquarters forwarded a copy of the statement taken from Abdulrezak İpek on 8 March 1996 and a copy of his identity card to the lieutenant-colonel Alpı.

Abdulrezak İpek stated in his statement that he did not even know where Türeli village was and that his children had not been taken away by soldiers. In fact, he did not have any children with those names. According to the copy of his identity card, this Abdulrezak İpek witness was born on 1 January 1959.

On 12 March 1996 the Lice gendarmerie commander replied to the lieutenant-colonel Alpı’s requests and enclosed copies of two pages of custody ledgers and copies of two pages of operation logbooks in which the day to day activities of the Lice gendarmerie were recorded. The Lice commander further stated in his letter that his soldiers had not conducted an operation in Türeli village on 18 May 1994 and that Servet and İkram İpek had not been detained. The letter further states that Major Şahap Yaralı had been Lice gendarmerie commander on 18 May 1994 but he had since been posted to another town in central Anatolia. Sergeant-Major Şükrü Günlükçü had been commander of the Tepe gendarmerie station in whose jurisdiction Türeli village was located: He had also been posted to a town in the west of the country.

Copies of the custody ledgers which were enclosed with this letter have been submitted to the Court. They do not contain the names of İkram or Servet İpek. Copies of the operation logbooks, which were also enclosed with this letter have not, however, been submitted to the Court.

On 25 March 1996 lieutenant-colonel Alpı concluded his investigation report. He came to the conclusion that no operation had been conducted by security forces in Türeli village on 18 May 1994 and indeed the security forces had not even gone to that village on that day. Lieutenant-colonel Alpı further considered that the statement taken from Abdurrezzak İpek in which the latter stated that he was not even from Türeli village and that his house had never been burnt down or that his children had not been taken away, also proved that no operation had taken place. He recommended that as there was no evidence to prove that the alleged events had taken place, authorisation to prosecute members of security forces should not be granted. This report was forwarded to the Lice governor’s office on 1 April 1996.

(c)  Proceedings before the Lice District Administrative Council and the Diyarbakır Regional Administrative Court

On 16 May 1996 the Lice district administrative council, under the presidency of the Lice governor, decided on the basis of the information submitted to them by lieutenant-colonel Alpı not to grant authorisation for the prosecution of members of the security forces. This decision was appealed against ex officio pursuant to domestic law.

On 18 October 1996 the Diyarbakır Regional Administrative Court (Diyarbakır Bölge İdare Mahkemesi), sitting as the appeal court, rejected the appeal and upheld the decision not to grant authorisation for the prosecution of members of the security forces. It had not been possible to communicate this decision to Abdurrezzak İpek and the Lice Governor had therefore ordered the publication of the result in a newspaper.

Finally, the applicant has submitted a letter dated 21 January 2000 and signed by Şakir Yolar, the father of Seyithan Yolar and the uncle of Sait and Nuri Yolar who were allegedly taken from the village by soldiers and detained together with the applicant’s son.

Mr Yolar, who also lived in the same village as the applicant, confirmed the applicant’s version of events and added that Sait and Nuri were released but that his son Seyithan has not been released. He has not heard from his son Seyithan since the incident.

Mr Yolar further submitted that he attempted to give a petition to the Lice Infantry Battalion the day after the incident, but was kicked by the soldiers and was told to go and look for his son and nephews at the Gendarmerie. The Gendarmerie subsequently advised him to apply to the Infantry Battalion. Mr Yolar then sent a telegram to the Chief of Staff of the Turkish Armed Forces in Ankara (Genel Kurmay Başkanlığı). The Chief of Staff stated in his reply that no operation had taken place and that these persons had not been detained.

Mr Yolar also attempted to give a petition to the Diyarbakır National Security Court but his petition was not accepted.

(d)  Amnesty International’s Urgent Action (EUR44/46/94)

This document states, so far as relevant, as follows:

“On 18 May 1994, soldiers from the Gendarmerie Headquarters in Lice raided the Dahla Zara settlement of Türeli village near Lice, province of Diyarbakır. They gathered the villagers together and searched their houses, finding nothing. All 25 houses of the settlement were then burned together with the contents and the villagers’ animals. Under threats, the villagers were ordered to leave. At around noon, the gendarmes (soldiers carrying out police duties in rural areas) left the settlement, taking Servet İpek, İkram İpek, Seyithan Yolur, İsmail İpek, M. Şerif İpek, Ekrem Yolur and Enver Yolur with them. The latter four were released after eight days, having been separated from the other three during the first night in custody. The three have since “disappeared”. Their families’ requests for information to Lice Police Headquarters, Lice Gendarmerie Headquarters and the Emergency Legislation Governor in Diyarbakır have been met with silence. However, the State Security Court in Diyarbakır responded on 6 June, saying that the three men were not registered as being in custody”.

B.  Relevant domestic law and practice

1.Criminal law and procedure

Under the Turkish Criminal Code (Türk Ceza Kanunu, hereafter CC) unlawful deprivation of liberty (Article 179 generally, Article 181 in respect of civil servants), coercion through force or threats (Article 188), arson (Articles 369-372), aggravated arson if human life is endangered (Article 382), unintentional arson by carelessness, negligence or inexperience (Article 383), all forms of intentional homicide (Articles 448-455), unintentional homicide (Articles 452 and 459), intentional infliction of damage to someone’s property (Articles 516 and 517) and the arbitrary harming or killing of another person’s animal (Article 521) constitute criminal offences.

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu, hereafter CCP), with the public prosecutor or the local administrative authorities. Under Article 235 of CCP, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duty is liable to imprisonment. 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 CCP. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

If a suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. If it concerns a “military offence” under the Military Criminal Code (Law No. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and the pertaining rules of criminal procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353).

2.State of Emergency

Since approximately 1985, serious disturbances have raged in the south-east part of Turkey between security forces and members of the PKK. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law No. 2935, 25 October 1983). The first, Decree No. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey, including the Province of Tunceli. Under Article 4 (b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.

The second, Decree No. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

“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 damage suffered by them without justification.”

3.Prosecution for terrorist offences and offences allegedly committed by members of the security forces

Under section 3 of the Prevention of Terrorism Act (Law No. 3713 of 12 April 1991), the offence defined in Article 168 of CC is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of CC is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to section 9 (a) of Law No. 2845 on the Procedure in the National Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of National Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Articles 168 and 169 of the CC.

Public prosecutors are also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Article 4 § 1 of Decree No. 285 provides that all security forces under the command of the Regional Governor shall be subject, in respect of acts performed in the course of their duties, to the Law on Proceedings on the Prosecution of Civil Servants.

Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must issue a decision of non-jurisdiction and, depending on the suspect’s status, transfer the file to either the District or the Provincial Administrative Council (İlçe or İl idare kurulu). These councils are made up of civil servants and are chaired by the District or Provincial Governor. They conduct the preliminary investigation and decide whether or not a prosecution should be instituted. These councils have been criticised for their lack of legal knowledge, as well as for being easily influenced by the District or Provincial Governors, who also head the security forces.

An appeal against a decision by a District Administrative Council lies with the Regional Administrative Court. If a decision not to prosecute is taken, the case is automatically referred to that court. An appeal against a decision taken by a Provincial Administrative Council lies with the Council of State (Danıştay). If a decision not to prosecute is taken, the case is automatically referred to the Council of State.

If a decision to prosecute has been taken, the case is referred to the public prosecutor for further action.

4. Constitutional provisions on administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts and decisions of the Administration are subject to judicial review ... The administration shall be liable for damage caused by its own acts and measures.”

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 the 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.

Under section 13 of Law No. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring proceedings before the administrative courts, whose proceedings are in writing.

5. Civil law provisions

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Civil Obligations (Borçlar Kanunu), an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Civil Obligations and non-pecuniary or moral damages awarded under Article 47 of this Code. The civil courts are not bound by the findings of a criminal court as to a defendant’s liability (Article 53).

However, under section 13 of Law No. 657 on State employees, anyone who has sustained loss as a result of the exercise of official duties by a civil servant may, in principle, only bring an action against the public authority in whose service the civil servant concerned works and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Civil Obligations). If, however, the act is found to be illegal or tortious and, consequently, is no longer considered as an “administrative” act or deed, the civil courts may allow a claim for damages against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Civil Obligations).

COMPLAINTS

The applicant complains under Article 2 of the Convention that there was a substantial risk that his two sons died whilst in unacknowledged detention, given that there exists a 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.

Invoking Article 3 of the Convention, he refers to his inability to discover what has happened to his sons.

He complains of a breach of Article 5 of the Convention in respect of the unlawful detention of his sons, the failure of the authorities to inform his sons of the reasons for their detention and to bring them before a judicial authority within a reasonable time, as well as the inability to bring proceedings to have the lawfulness of his sons’ detention determined.

He further alleges that contrary to Article 13 of the Convention, there is a lack of any independent national authority before which his complaints can be brought with any prospect of success.

The applicant complains under Article 14 of the Convention that he and his sons have been discriminated against on the ground of their Kurdish origin in the enjoyment of their rights under Articles 2, 3, and 5 of the Convention and Article 1 of Protocol No. 1.

Invoking Article 18 of the Convention he submits that the interferences referred to above with the exercise of Convention rights were not designed to secure ends permitted under the Convention.

Finally; the applicant complains under Article 1 of Protocol No.1 of the destruction of his home.

The applicant maintains that there is no requirement that he pursue domestic remedies. According to him, any alleged remedy is illusory, inadequate and ineffective because:

a) there is strong evidence that the disappearances in custody have been repeated and 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 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, and by pursuing his case in a number of different quarters.

THE LAW

The applicant complains of violations of Articles 2, 3, 5, 13, 14, 18 of the Convention and Article 1 of Protocol No.1 in connection with the disappearance of his sons after they had been taken into custody and in relation to the destruction of his home. The relevant parts of these provisions provide as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...”
 

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
 

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;
 

...
 

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”
 

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 18

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
 

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Admissibility and Merits

The Government, while confirming that the applicant brought his allegations to the attention of the prosecutor at the Diyarbakır National Security Court in his petition on 27 October 1994, argue that the application should be declared inadmissible as being premature, imaginary and ill-founded as the investigation into these allegations which was conducted following the communication of the present application showed that no operation had been conducted in the area on 18 May 1994 and that the applicant’s sons had not been taken away by security forces.

The applicant maintains his accounts of events and points to Amnesty International’s Urgent Action (EUR44/46/94) of 10 June 1994 which refers to the events of 18 May 1994. He finally submits that this incident formed part of a larger series of incidents in the area during the period of April-June 1994. In this context the applicant points out that the complaints which were the subject matter of the cases (see the Menteş and Others v. Turkey judgment of 28 November 1997, Reports of Judgments and Decisions 1997-VIII and Çiçek v. Turkey no.25704/94, 27 February 2001), related to the events which took place in the same region and during the same period as the events in his application.

The applicant also argues that the investigation carried out by the authorities was not at all meaningful. He points out that the statement which largely formed the basis of the administrative authorities’ decision not to grant authorisation to the prosecutor to investigate his allegations further was made by one Abdulrezak İpek who was born in 1959 and who was thus clearly not the applicant in the present case as he had been born in 1942.

The Court 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 Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been raised by the Government and the Court sees no reason to do so of its own motion.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident

[1] The Court notes that in the application form the name of the village is recorded as Turalı.

 

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