AS TO THE ADMISSIBILITY OF
Application No. 24490/94
by Ahmet SARLI
against Turkey
The European Commission of Human Rights sitting in private on
28 November 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 June 1994 by
Ahmet SARLI against Turkey and registered on 28 June 1994 under file
No. 24490/94;
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 February 1995 and the observations in reply submitted by the
applicant on 15 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen of Kurdish origin, born in
1927 and residing at Diyarbakir. He is represented before the
Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of
the University of Essex, England. The applicant states that he brings
the application in his own name and on behalf of his son Ramazan Sarli
and his daughter Cemile Sarli.
A. Particular circumstances of the case
The facts of the present case, which are in dispute between the
parties, may be summarised as follows:
The applicant states that the following occurred.
In November 1993, the mayor of Ulusoy village, Ali ilban, was
summoned by Tatvan District Gendarme Unit Commander Dursun (surname
unknown). He was told that the PKK were burning village schools and
that the Government would hold the villagers responsible if the village
school was destroyed. The villagers had previously been threatened in
order to persuade them to become "protectors". There were no
"protectors" in the village. Nor was assistance rendered to the PKK.
The villagers sought to avoid collaboration with either "side".
Following the return of the mayor to the village, the villagers feared
that the village school might be attacked by the "protectors" of Sak
village, 30 kilometres away. They decided that three to four people
would guard the village school after dark. Four people were on watch
in the night of 24 December 1993, i.e. Yakup Çaçan, Naif Eriç, Kazim
Aydin and Rasit Tarçin.
At about 02.00 hours in the morning of 25 December 1993, these
four men saw a military vehicle approach the school. As the vehicle
came within a few metres, they saw by the light of their torches that
the vehicle was a small dark green (military green) van. A team of six
men was aboard it. The four guards called on the vehicle to stop but
it did not do so. The guards then fired one or two shots. Fire was
returned, after which the vehicle withdrew. The villagers came out of
their houses and discovered what had happened. As they were about to
return to their homes, the same persons came back. The guards were
afraid and went home. About half an hour later, a convoy of special
teams and gendarmes arrived at the village. They went to the home of
ismet Orakçi, at the entrance of the village, and asked for the
applicant's house. Taking ismet Orakçi with them, they went to the
applicant's house.
They knocked on the applicant's door at around 03.00 hours. He
asked who they were and was told that they were gendarmes. He opened
the door immediately. The gendarmes asked where his daughter Cemile
was. The applicant said that she was not at home. The applicant's son
Ramazan said that she was knitting with the daughter of Abdullah
Milyas, an acquaintance who lived 500 metres away. Taking Ramazan with
them, but leaving ismet Orakçi, the gendarmes left, having warned the
applicant and the others in his home that they would be shot if they
went outside.
Apparently the gendarmes and Ramazan went to the Milyas home
where Abdullah Milyas opened the door. The gendarmes then took away
Cemile, who was there, Ramazan and Abdullah Milyas. The applicant, his
family and ismet Orakçi went outside when it became light. Other
villagers were outside. There were still gendarmes in and around the
village. The applicant learnt from Abdullah Milyas that the three of
them had been taken to the village school in the night and that
Abdullah had been released one hour later.
On the morning of 25 December 1993, Captain Dursun, the commander
of the gendarmes who had come to the village, collected the villagers
together and asked if there were guerrillas in the village. Not only
did they say there were not, but First Sergeant Yavuz, Commander of the
Gendarme Station of neighbouring Yelkenli village, confirmed it.
Towards noon, whilst there were still gendarmes in the village, the
First Sergeant went to the house of the applicant's son Ramazan and
asked Ramazan's wife where Ramazan and Cemile were. She replied that
the gendarmes had taken them away. First Sergeant Yavuz denied that.
The applicant and his family left the village a few days after
the incident because they feared for their lives. The applicant submits
that the villagers ismet Orakçi and Abdullah Milyas were too afraid of
endangering their lives to provide statements to support the
application.
The applicant claims he has made repeated applications to Tatvan
and Bitlis State Prosecuting Authorities. On 1 February 1994 the Tatvan
public prosecutor replied to an application filed on the applicant's
behalf by his brother on 31 January 1994. The reply states that the
applicant's son and daughter were not taken away by the security forces
but by the "Takosin" group who, it claims, are members of the PKK. It
furthermore mentions that the public prosecutor took a decision of lack
of jurisdiction on 11 January 1994 and that the case was subsequently
transferred to the Head of the Prosecution's office at the Diyarbakir
State Security Court.
The applicant does not know on what basis the public prosecutor
reached the conclusion that his children were taken away by the PKK.
He knows of no investigations into what happened. He maintains that his
children were taken away by gendarmes and that the State has made no
effort to find them.
The respondent Government submit the following account of the
facts, based on statements made on 24 and 25 December 1993 by the
school guards Yakup Çaçan, Naif Eriç, Kazim Aydin and Rasit Tarçin, the
village mayor Ali ilban, the villager ismet Orakçi and the mother of
Cemile and Ramazan.
The four men guarding the school were on watch on the night of
23 December 1993 when, around 23.30 hours, they saw a taxi approach and
a group of terrorists. An exchange of fire followed, lasting about 10
to 15 minutes after which the terrorists left. Woken up by the sounds
of guns, the villagers came out to protect the school. A little later
the terrorists came back and proceeded to fire at the school for
approximately 20 minutes, upon which they left. At around 03.00 hours
gendarme units arrived at the village and during 30 minutes there was
more exchange of fire.
After the second shooting, six terrorists dressed in Kurdish so
called pesh merga outfits came to the house of ismet Orakçi and told
him to take them to the house of Ahmet Sarli. Once there, the
terrorists took Ramazan and Cemile and moved out of the village. The
school guards and the mayor were only informed of this the following
morning.
Following the lodging of a written complaint by the applicant's
brother to the Bitlis public prosecutor on 31 January 1994, the
complaint was transferred to the Tatvan public prosecutor's office the
same day. The Tatvan public prosecutor commenced a preliminary
investigation. On 1 February 1994 the applicant was informed in writing
that his children had been abducted by the PKK and that the file had
been transferred to the Diyarbakir State Security Court on 11 (sic)
January 1994 due to a lack of jurisdiction of the Tatvan public
prosecutor.
B. Relevant domestic law and practice
The Turkish Criminal Code makes abduction or kidnapping a
criminal offence (Section 499). Section 499 para. 2 concerns the crime
of kidnapping for political reasons. Pursuant to Section 4 of the
Prevention of Terrorism Act, the crime described in Section 499 para.
2 of the Criminal Code is considered a terrorist crime.
In general, in respect of criminal offences, complaints may be
lodged, pursuant to Sections 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 criminal offences 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 alleged author of a criminal offence 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.
As regards the prosecution of terrorist crimes, only the State
Security Courts have jurisdiction pursuant to the Prevention of
Terrorism Act.
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 13,
14 and 18 of the Convention.
As to Article 2, the applicant states, in relation to the
disappearance of his children, that unacknowledged detention in the
hands of the State in South-East Turkey is life-threatening, on account
of the administrative practice of torture and the high incidence of
deaths in custody, some apparently as a result of torture. He also
refers to the lack of any effective system for ensuring protection of
the right to life and to the inadequate protection of the right to life
in domestic law.
As to Article 3, he states, with regard to his children, that
their "disappearance" is a form of torture and, in relation to himself,
that his inability to discover what has happened to his children is a
violation of Article 3. He also refers to Article 3 on account of
discrimination on grounds of race and ethnic or national origin.
As to Article 5, he refers to his children not being brought
before a judicial authority within a reasonable time and not being able
to bring proceedings to determine the lawfulness of their detention.
As to Article 13, he complains of the lack of any independent
national authority before which his complaints can be brought with any
prospect of success.
As to Article 14, he complains of violations of his and his
children's rights under Articles 2, 3 and 5 on account of an
administrative practice of discrimination on grounds of race and ethnic
or national origin.
As to Article 18, he submits that the interferences in the
exercise of Convention rights are not designed to secure the ends
permitted under the Convention.
As regards exhaustion of domestic remedies, the applicant
maintains that there is no requirement that he pursue such remedies.
In his view, any alleged remedy is illusory, inadequate and ineffective
because:
(a) the abduction of his son and daughter was officially organised,
planned and executed by agents of the State,
(b) there is an administrative practice of non-respect of the rule
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) alternatively, the applicant has done everything he can do to
exhaust domestic remedies by submitting petitions to the prosecutors
of Tatvan and Bitlis; the nature of the response received on
1 February 1994 and the lack of any basis for the assertions it
contains confirms the ineffectiveness of any alleged remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 June 1994 and registered on
28 June 1994.
On 11 October 1994 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
written observations on the admissibility and merits of the case.
The Government's written observations were submitted on
27 February 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 15 May 1995, also after an extension
of the time-limit.
THE LAW
The applicant complains of the arrest, detention and
disappearance of his son and his daughter. He invokes Article 2
(Art. 2) (the right to life), Article 3 (Art. 3) (the prohibition on
inhuman and degrading treatment), Article 5 (Art. 5) (the right to
liberty and security of person), Article 13 (Art. 13) (the right to
effective national remedies for Convention breaches), Article 14
(Art. 14) (the prohibition on discrimination) and Article 18
(Art. 18) (the prohibition on using authorised Convention restrictions
for ulterior purposes) of the Convention.
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.
In this respect the Government refer to the pending investigation
by the public prosecutor of the Diyarbakir State Security Court.
The applicant maintains that there is no requirement that he
pursue domestic remedies. Any notionally available remedy is rendered
illusory and ineffective by an administrative practice of non-respect
for the requirement under the Convention of the provision of effective
domestic remedies.
The applicant refers in particular to the fact that the file was
transferred to the Diyarbakir State Security Court which would indicate
that the authorities assume his children were abducted by terrorists
and that they have excluded the possibility of State involvement. Since
he cannot challenge the transfer of the file, the applicant contends
that he is unable to obtain a judicial determination as to the possible
responsibility of the State.
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 he had at his disposal adequate remedies under
the state of emergency to deal effectively with his complaints.
While the Government refer to the pending investigation by the
public prosecutor of the Diyarbakir State Security Court, the
Commission notes that the alleged incident occurred on either 24 or 25
December 1993 and the investigation has not yet been concluded. The
Commission is not satisfied in view of the delays and the serious
nature of the alleged crime that this inquiry can be considered as
furnishing an effective remedy for the purposes of Article 26
(Art. 26) of the Convention.
The Commission concludes that this application cannot be rejected
for non-exhaustion of domestic remedies under Articles 26 and 27 para.
3 (Art. 26, 27-3) of the Convention.
As to the substance of the applicant's complaints
The Government submit that the applicant's account of the facts
is contradicted by the statements of witnesses, including that of his
wife.
The applicant maintains his account of events and contends that,
since the Government have not provided statements from Abdullah Milyas
or from any of the gendarmes present at the material time, the witness
statements submitted by the Government are not conclusive. Moreover,
in the applicant's view, most of these witness statements do not
exclude that his children were abducted in the manner he described.
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, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy