TEPE v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 27244/95

                      by Isak TEPE

                      against Turkey

     The European Commission of Human Rights sitting in private on

25 November 1996, 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

                 M.P. PELLONPÄÄ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           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 28 March 1995 by

Isak Tepe against Turkey and registered on 4 May 1995 under file No.

27244/95;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 11 September 1995 to communicate the

     application ;

-    the observations submitted by the respondent Government on 19

     February 1996 and the observations in reply submitted by the

     applicant on 4 April 1996 ;

     Having deliberated;

     Decides as follows:

THE FACTS

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

1943 and resides in Bitlis. He is represented before the Commission by

Professor Kevin Boyle and Ms. Francoise Hampson, both university

teachers at the University of Essex.

     The facts as submitted by the parties may be summarised as

follows.

A.   Particular circumstances of the case

     The applicant claims that the following events occurred.

     In the beginning of July 1993 K.T., the Tatvan 6th Armed Brigade

Commander, invited all provincial leaders of the political parties to

a meeting at the army residences. The applicant attended  the meeting

as the provincial leader of the DEP (Democratic Party) and spoke in

support of the cultural and democratic rights of the people of Kurdish

origin in Turkey.

     In the afternoon of 10 July 1993, the applicant's son, Ferhat

Tepe, born in 1974 and working as a reporter for "Özgür Gündem" in

Bitlis, was taken into police custody. He was released the same

afternoon without any explanation as to why he had been arrested. There

were four other people in the room where Ferhat Tepe was kept in

confinement at the police station.

     On 28 July 1993 two policemen visited the apartment where Ferhat

Tepe lived with his family and made inquiries about his whereabouts.

     Later that day at around 7.00 p.m., while Ferhat Tepe was in the

schoolyard of the Semsi Bitlis primary school, a tall bearded man who

was known in the area to be a policeman took him by the arm, put him

in a car and drove him away. Their car was followed by a white Renault

car, registration number 65 AD 095. There were two people inside the

white Renault, which was seen later that day parked next to Mahallebasi

police station.

     On 29 July 1993 at around 6.00 a.m. the applicant received a

telephone call from a person claiming to be from the "Ottoman Turkish

Revenge Brigade". The man on the telephone said that Ferhat Tepe was

in their hands and would be killed unless he would close the DEP Bitlis

Branch, release four French tourists in the hands of the PKK and pay

1 billion Turkish Lira. The applicant said he could close the DEP in

Bitlis and could try to find 1 billion Lira but had no power to procure

the release of the French tourists as he had no connection with the

PKK.

     On the same day at 8.00 a.m. the applicant went with his wife and

daughter to the Bitlis Security Directorate where he told the Security

Director and the Provincial Governor that he suspected that Ferhat Tepe

had been abducted by contraguerrillas within the state security forces.

The Governor and the Security Director denied the existence of

contraguerrillas in Turkey and said that the State did not commit

murder.

     On the same day the applicant applied to the Public Prosecutor

of Bitlis and asked that his home and office telephones be tapped in

order to trace, in case of another call, the number from which the

calls were being made.  He also requested that the necessary action be

taken to rescue his son.

     On 30 July 1993 the applicant sent telegrams to the Prime

Minister, the Minister of the Interior and the Regional Governor of the

State Emergency Regime asking for their assistance to rescue his son.

     Subsequently, the applicant informed the Security Director that

F.O. and A.K. had been eye witnesses to Ferhat Tepe's abduction and

that according to them the people who had taken Ferhat Tepe away were

policemen.  The applicant also informed the Security Director that

there was evidence that the white Renault which had followed the car

in which Ferhat Tepe was abducted belonged to the security forces.

     On 4 August 1993 the applicant received a second phone call.  The

conversation that followed was recorded.  The person on the telephone

asked the applicant to bring 1 billion Turkish Lira to an address in

Elazig.  After listening to the recording, the Security Director told

the applicant that the state could give him special banknotes, whose

serial numbers had been noted by the police.  He told him to come back

later for the banknotes.  Later on the same day, when the applicant

called again, the Security Director told him that he had difficulty in

finding the banknotes.

     On the same day the applicant together with four policemen and

four of his relatives, went to the address in Elazig indicated by the

anonymous person during the telephone conversation, but could not find

anyone.

     Still on 4 August 1993 Ferhat Tepe's dead body was found by a

civil servant at Hazar Lake, Karakem. On the same day the body was

examined by the Public Prosecutor and an expert doctor.  The report of

their findings concluded that the cause of death was drowning and that

there was no need for a systematic autopsy.  It also stated that there

were no signs of blows or force on the whole body nor signs of friction

on the wrists and ankles.

     On 5 August 1993 the applicant, who had not yet been informed of

the death of Ferhat Tepe, applied to the Public Prosecutor inquiring

whether the telephone number from which he was being called had been

traced. His application remained unanswered.

     On 8 August 1993 the applicant received another anonymous

telephone call in which he was told that Ferhat Tepe's body was at the

morgue at Elazig.  Later that day the applicant discovered that the

body had been buried on 5 August 1993 in the Elazig Cemetery for

Persons with no Relatives.  Ferhat Tepe's body was exhumed and, in

preparation for the funeral ceremony, the applicant washed the body

himself.  He saw marks on the testicles and breast.  There were also

deep wounds on the wrists and ankles showing that Ferhat Tepe had been

bound hand and foot.

     The applicant alleges that according to eye witnesses M.C., O.A.,

B.E., M.Y., M.K., T.S., E.D., U.P., and R.D. who had been apprehended

and questioned at the relevant time in Diyarbakir Recruiting Office,

Ferhat Tepe had been held there and tortured by members of the security

forces between 28 July and 4 August 1993.

     M.C. allegedly gave a statement in this sense, but withdrew it

after the police had threatened him.

     On 9 August 1993 the Public Prosecutor of Sivrice gave a decision

of non-jurisdiction referring the file to the Bitlis Public Prosecutor.

     At the funeral procession in Bitlis on 10 August 1993, there was

a strong police presence.  The police filmed the persons who had

attended, checked their identification and arrested fifteen persons.

Later on the same day the applicant's house was searched by the police.

     On 12 August 1993, the Bitlis Public Prosecutor issued a decision

that he had no jurisdiction and referred the case to the Elazig Public

Prosecutor.

     On 19 October 1993 the applicant sent a letter to the Unknown

Perpetrators' Murders Committee of the Turkish Parliament alleging that

his son had been killed by secret forces within the state security

forces.

     On 2 November 1993 the applicant filed a petition with the

Ministry of Justice, alleging that the abduction and the killing of

Ferhat Tepe were the act of state forces and requesting an

investigation on the matter.

     On 16 March 1994 the applicant went to the Public Prosecutor of

Bitlis and asked whether any inquiry had been opened into the killing

of Ferhat Tepe.  The Public Prosecutor told him there were some

obstacles which he could not get past.  On the same day the applicant

went to the Bitlis Provincial Security Directorate and asked the

Assistant Director why no investigation had been carried out.  The

Assistant Director said he did not have to explain anything to the

applicant.

     On 28 September 1994 the applicant applied again to the Ministry

of Justice asserting that certain state security forces were

responsible for the abduction and death of his son.  He requested that

his allegations be investigated.

     On 15 November 1994 the Chief Public Prosecutor of Elazig issued

a permanent search warrant.

     The applicant's family has been under intense pressure from the

state authorities in relation to his political activities and the

investigations into the killing of his son that he is carrying out

himself : the applicant's daughter was remanded in custody in December

1993; his son was remanded in custody in 1994 for four months and is

being tried for an offence which carries the death sentence; another

of the applicant's daughters was taken into custody in April 1994; four

of the applicant's nephews were remanded in custody in 1994, one of

whom is being tried for an offence which carries the death sentence;

the applicant's brother was taken into custody in April 1994 and the

applicant's cousin has been in Elazig prison since 1994.

     On 4 March 1996 the applicant was allegedly taken into custody

in Bitlis on charges of aiding the PKK.  He was released on an

unspecified date, after being interrogated.

     The respondent Government state as follows.

     The applicant's son Ferhat Tepe had been arrested on two

occasions in 1991, as he was suspected of acting as a courier for the

PKK.

     The Government submit that, according to various witnesses, on

28 July 1993 Ferhat Tepe met someone in the schoolyard and left with

him of his own free will.

     The anonymous telephone call on 4 August 1993 was tapped by the

authorities, at the request of the applicant.  Although a raid was made

at the address mentioned in the telephone conversation, the house had

been vacated.  The authorities of the Ministry of the Interior

established nevertheless that the persons whose house was searched were

reporters from the newspaper "Özgür Gündem" in Elazig province and

concluded that the death of the applicant's son was the work of the

PKK.

     A report of 24 September 1993 from the Ministry of the Interior

to the Ministry of Foreign Affairs, as well a letter of 16 November

1995 from the Governor of the Bitlis province, indicate that the death

of the applicant's son was the work of the terrorist organisation,

the PKK.

     In a letter of 10 November 1995 the Chief Public Prosecutor of

Elazig province, charged with investigating Ferhat Tepe's death,

informed the Ministry of Justice that there was no indication or record

of Ferhat Tepe being taken into custody.  Moreover, the custody record

of Bitlis Security Directorate contained no mention of Ferhat Tepe.

B.   Relevant domestic law and practice

     Civil and administrative procedures

     Article 125 of the Turkish Constitution provides :

     < 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 :

     "...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 tort, which

causes material or moral damage, may be the subject of a claim for

compensation before the ordinary civil courts and the administrative

courts.

     Damage caused by terrorist violence may be compensated out of the

Social Help and Solidarity Fund.

     Criminal procedures

     The Turkish Criminal Code makes it a criminal offence to 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).  Provisions also cover 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 decrees having the force of law and enacted between

12 September 1980 and 25 October 1983.  That includes Law 2935 on the

State of Emergency of 25 October 1983, under which decrees have been

issued which are immune from judicial challenge.

     Extensive powers have been granted to the Regional Governor of

the State of Emergency by such decrees, especially Decree 285, as

amended by Decree 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 decision 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 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 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, 10,

13, 14 and 18 of the Convention.

     As to Article 2, he alleges that his son was unlawfully killed

during his detention by agents of the state. He also alleges a

violation on account of the lack of any effective system for ensuring

protection of the right to life and of the inadequate protection of the

right to life in domestic law.

     As to Article 3, he alleges that his son was tortured by agents

of the state. He further complains that his inability  to discover the

circumstances in which his son was tortured and killed constitutes a

violation of this Article.

     As to Article 5, he alleges that his son was unlawfully arrested

and detained.

     As to Article 10, he alleges a violation on account of torture

and killing designed to deter the lawful exercise of freedom of

expression.

     As to Article 13, he complains of the lack of any authority

before which his complaints can be brought with any prospect of

success.

     As to Article 14, he complains of discrimination in the enjoyment

of his rights under Articles 2, 3, 5, 8, 10, 13 and 18 of the

Convention. He also refers to an administrative practice of

discrimination on account of race or ethnic origin.

     As to Article 18, he alleges that the restrictions on his rights

and freedoms set forth in the Convention are applied for purposes not

permitted under the Convention.

     As regards the domestic remedies, the applicant maintains that

there is no requirement that he pursue domestic remedies, if any. He

asserts that any remedy would be illusory, inadequate and ineffective

because:

-    the torture and killing of his son was carried out by agents of

the state and there is strong evidence that such acts have been

repeated and received official tolerance;

-    in these circumstances there is an administrative practice giving

rise to a presumption that the local remedies, if any, are not

effective;

-    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 any redress and the failure of the authorities

to make any substantial attempt to bring the persons responsible for

the abduction and killing of his son to justice.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 March 1995 and registered

on 4 May 1995.

     On 11 September 1995 the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and the merits of the case.

     The Government's written observations were submitted on 19

February 1996.  The applicant submitted observations in reply on 4

April 1996.

THE LAW

     The applicant complains about the taking into custody and

subsequent killing of his son.  He invokes Article 2 (Art. 2) (the

right to life), Article 3 (Art. 3) (the prohibition on torture),

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

Article 10 (Art. 10) (the right to freedom of expression), Article 13

(Art. 13) (the right to effective national remedies for breaches of the

Convention), 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 contend that the applicant failed to exhaust

domestic remedies available to him.  In particular, the Government

point out that the applicant could have asked for compensation based

on the absolute liability of the administration for failure to protect

citizens.

     The applicant responds that he filed a petition with the

competent prosecutor and made every attempt to have an investigation

initiated in the case.  He refers to the length of the time which the

investigation is taking.

     The Commission recalls that Article 26 (Art. 26) of the

Convention requires only 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 v. the Netherlands 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, pp. 250, 262).

     The Commission notes that the incident occurred on 28 July 1993

and the Chief Public Prosecutor of Elazig province has apparently been

in charge of an investigation regarding Ferhat Tepe's death. It seems

that the Chief Public Prosecutor issued a permanent search warrant on

15 November 1994. The Commission has not been informed of any findings

made as a result of this investigation.

     The Commission considers that in the circumstances of this case

the applicant is not required to pursue any legal remedy separate from

the investigation commenced by the public prosecutor (see eg. No.

19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75, p. 207).  The

Commission concludes that the applicant may be considered to have

complied with the domestic remedies rule laid down in Article 26

(Art. 26) of the Convention.  Consequently, the application cannot be

rejected for non-exhaustion of domestic remedies under Article 27 para.

3 (Art. 27-3) of the Convention.

     Six-month rule

     The Government submit that the application was not filed within

the period of six months laid down in Article 26 (Art. 26) of the

Convention.  They point out that the disappearance occurred on

28 July 1993, whereas the application was filed on 28 March 1995.

     The applicant responds that he filed a petition with the Bitlis

Public Prosecutor on 29 July 1993.  On 15 November 1994 the Chief

Public Prosecutor of Elazig issued a permanent search warrant.

However, since that date, no progress has been made in the

investigation.  He submits that he filed his application with the

Commission when he saw that the investigation was not being completed

in an effective and adequate manner.

     The Commission considers that the applicant was in principle

justified in awaiting the results of the domestic investigation before

complaining to the Commission. On the other hand, once it had appeared

that that investigation was unlikely to give him redress, he should

lodge his application within a period of six months. There is no basis

for considering that in the present case the six months period started

to run before 28 September 1994.

     In these circumstances, the Commission considers that the

relevant date for the purposes of the six-month time-limit should not

be considered to be a date earlier than November 1994.

     It follows that the applicant's complaints have been introduced

within the six-month time-limit imposed by Article 26 (Art. 26) of the

Convention.

     As regards the merits

     The Government deny that the applicant's son was in custody and

refer to the reports of 24 September 1993 and 16 November 1995

concluding that the death of Ferhat Tepe was the result of a dispute

within the PKK.

     The applicant maintains his account of events.

     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, by a majority,

     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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