AS TO THE ADMISSIBILITY OF
Application No. 23531/94
by Mehmet TiMURTAS
against Turkey
The European Commission of Human Rights sitting in private on
11 September 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
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 9 February 1994
by Mehmet TiMURTAS against Turkey and registered on 24 February 1994
under file No. 23531/94;
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
16 March 1995 and the observations in reply submitted by the
applicant on 22 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen of Kurdish origin, born in
1928 and resident at Cizre. He is represented before the Commission by
Professor Kevin Boyle and Ms. Françoise Hampson, both of the University
of Essex, England.
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.
On 14 August 1993 the applicant's son Abdulvahap, born in 1962,
was taken into custody at Yeniköy in Silopi district, Sirnak province,
by gendarmes connected to Silopi Gendarme Command Headquarters. He was
arrested, together with a friend, in front of all the villagers. The
village muhtar and his son were taken into custody at the same time.
A person, who did not give his name, telephoned the applicant from the
village to tell him about the arrest.
About three days later Abdulvahap and his friend were taken
around a number of villages and were shown to the villagers in the
village squares. The aim was apparently to determine whether the
villagers knew them or whether they knew the villagers.
Within a week of the arrest the authorities apparently called
muhtars of the villages in the area to Silopi, to see whether they knew
Abdulvahap and his friend. The muhtars were taken to Silopi Gendarme
Command Headquarters where they saw Abdulvahap and his friend.
A week after his son's arrest the applicant submitted a written
petition to the Silopi State Prosecutor. The petition was not
processed, and the applicant was told verbally that his son was not
there.
Later the applicant was informed, through a relative, A, who is
the chairman of the Council of Güçlükonak district, that his son was
detained at the Sirnak Brigade Command Headquarters and that he would
be brought before a court. This information was confirmed by another
person, E, who told the applicant that his son was well and would be
brought before a court. E also said that he was meeting Abdulvahap's
needs, giving him tea and cigarettes. After 25 days' detention E and
another person, N, telephoned the applicant and reassured him that his
son was well. Both E and N work for the authorities after having
confessed when put on trial for alleged involvement with the PKK.
After the applicant's son had been detained for 30 days, the
applicant went to Silopi in the hope of obtaining information. His son
was not brought to the court. The applicant submitted a petition to the
Prosecutor. The Prosecutor verbally refused to accept it without
processing it officially. The authorities denied all knowledge of the
applicant's son.
The applicant assumed that his son's detention had been extended
from 30 to 45 days, and on the 45th day after his son's detention the
applicant again made an application to the Silopi State Prosecutor,
through official channels. This time the Prosecutor signed the petition
and transferred it to Silopi Security Directorate. When the applicant
went to the Security Directorate he was told that his son was not in
custody. The applicant then went to the lieutenant who was in command
of the Silopi Gendarmerie. The applicant said that his son had been
missing for a month and a half.
As the applicant received no explanations, he went to Sirnak
where he presented a petition to the Sirnak Chief Prosecutor. The
Prosecutor approved the petition and sent it to Sirnak Brigade Command
Headquarters. From there it was sent to the Political Branch or the
Anti-Terror Branch of the police. They took the petition without
replying to it but said that they had no one like the applicant's son
in their custody.
The applicant then went with his wife to Güçlükonak to see A, who
had given them information before. A made various enquiries but without
result. The applicant also saw E and N. E said that Abdulvahap was
being interrogated and gave some information about his detention. N
confirmed E's account.
The applicant then went back to Silopi to see the State
Prosecutor. This was 55 days after his son's arrest. The Prosecutor
took his statement and told the applicant to come back in a month.
At the end of this month the applicant went back to Silopi, but
the Prosecutor said that the papers had not come back yet. The
applicant was told to return in ten days' time. When he returned ten
days later, there were still no developments and he was told to come
back a week later.
The applicant has made a number of enquiries about his son but
without result. On 2 December 1993, when he was in Diyarbakir, he
submitted a petition to the Diyarbakir State Security Court. Its reply
was that they had no record of the applicant's son. The applicant still
awaits news and fears that his son is dead.
The applicant had another son, Mehmet Tevfik Timurtas, who died
under torture three years ago. At that time the commander of the
Security Directorate had said that it would soon be Abdulvahap's turn.
The respondent Government state the following.
On 15 October 1993 the Silopi State Prosecutor commenced a
preliminary investigation under file no. 1993/825 which is currently
still pending. In his statement, the applicant told the Prosecutor that
his son had gone to Syria two years previously and that he had not seen
him since.
In the course of the investigation by the Prosecutor the Gendarme
Command and the Security Directorate declared upon a written request
that the applicant's son had not been detained by them. Also two
village mayors who had been adduced by the applicant as eye-witnesses
declared that they had no knowledge of the alleged incident. It has so
far not been possible to obtain statements from other witnesses named
by the applicant and living in Güçlükonak.
The applicant's son Mehmet Tevfik Timurtas did not die as a
result of torture but from a respiratory disease leading to heart
failure.
B. Relevant domestic law and practice
The Government have submitted that the following domestic law is
relevant to the case:
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."
Proceedings before the administrative courts are in writing.
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).
In general, in respect of criminal offences, complaints may be
lodged, pursuant to Articles 151, 152 and 153 of the Code of Criminal
Procedure, with the State Prosecutor or the local administrative
authorities. The State 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
of the State Prosecutor not to institute criminal proceedings.
If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human lives or damaging property, if they have not followed
orders in conformity with Articles 86 and 87 of the Military Code.
Proceedings in these circumstances may be initiated by the persons
concerned (non-military) before the competent authority under the Code
of Criminal Procedure, or before the suspected persons' hierarchical
superior (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
If the alleged author of a crime 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.
Emergency measures
Articles 13 to 15 of the Constitution provide for substantial
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 Decrees 424 and 425, and Decree 430.
Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in the areas subject to the state of emergency, with the
effect that the decision to prosecute members of the security forces
is removed from the State Prosecutor and conferred on local
administrative councils.
Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"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 damages suffered by them without justification."
COMPLAINTS
The applicant complains of violations of Articles 2, 3, 5, 13,
14 and 18 of the Convention.
As to Article 2, he submits that unacknowledged detention in the
hands of the State in South-East Turkey, on account of the
administrative practice of torture and the high incidence of deaths in
custody, is life-threatening. 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 refers to his inability to discover what had
happened to his son and to discrimination on grounds of race or ethnic
origin, in relation to both himself and his son.
As to Article 5, he complains that his son was unlawfully
detained, was not informed of the reasons for his arrest, was not
brought before a judicial authority within a reasonable time and was
not able to bring proceedings to determine the lawfulness of his
detention, in complete lack of security of the person.
As to Article 13, he complains of the lack of any independent
national authority before which these complaints can be brought with
any prospect of success.
As to Article 14, he refers to an administrative practice of
discrimination on grounds of race or ethnic origin and complains of
violations of Article 14 in conjunction with Articles 2, 3 and 5.
As to Article 18, he submits that the interferences in the
exercise of the Convention rights were not designed to secure the ends
permitted under the Convention.
As to the exhaustion of domestic remedies, the applicant
considers that there is no requirement that he pursue the alleged
domestic remedies since any remedy is illusory, inadequate and
ineffective. He states in this regard that
(a) his son's detention 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, and
(d) alternatively, he has done everything he can do to exhaust
domestic remedies by submitting petitions to many Prosecutors and
by pursuing the matter in other ways, but without any result.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 February 1994 and registered
on 24 February 1994.
On 9 May 1994 the Commission decided to communicate the
application to the Government who were invited to submit their
observations on its admissibility and merits before 19 August 1994.
By letter dated 11 October 1994 the Government submitted
preliminary observations and requested that the examination of the
application be adjourned pending the investigation by the State
Prosecutor in Silopi.
On 14 January 1995 the Commission refused the adjournment and
invited the Government to submit their observations by 27 February
1995.
By letter of 14 March 1995 the Commission's Secretary pointed out
to the Government that the period for the submission of the
Government's observations had expired and that no extension of that
time-limit had been requested. It was added that the application was
being considered for inclusion in the list of cases for examination by
the Commission at its April session.
Observations were submitted by the Turkish Government on 16 March
1995. The applicant replied on 22 May 1995.
THE LAW
The applicant complains, on his own behalf and on behalf of his
son, of the taking into custody, detention and disappearance of the
latter. 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 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) 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. They contend in the first place that, contrary to what has
been alleged by the applicant, his petition to the State Prosecutor of
Silopi has resulted in the institution of a preliminary investigation
which is currently still pending.
The Government further refer to the possibility of administrative
action pursuant to Article 125 of the Constitution and to Law 2935 of
the State of Emergency and Decree 430. They state that the applicant
could have pursued a criminal complaint against the police or military
authorities pursuant to Articles 151, 152 and 153 of the Code of
Criminal Procedure.
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 further submits that in light of the outright
denial by the authorities that his son has been taken into custody any
further action on his part would be futile. He refers to the number of
times the Prosecutor verbally refused to accept and process his
petitions, to the length of time the investigation is taking, and to
the negligible rate of prosecution of members of the security forces
for human rights abuses in South-East Turkey.
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
Silopi State Prosecutor, the Commission notes that the applicant's son
was allegedly taken into detention on 14 August 1993 and the
investigation has not yet been concluded two years later. The
Commission is not satisfied in view of the delays and the serious
nature of the alleged crimes that this inquiry can be considered as
furnishing an effective remedy for the purposes of Article 26 (Art. 26)
of the Convention. No explanation has been given as to any obstacles
in the way of bringing the investigation to a conclusion.
The Commission also considers that it cannot be said at this
stage that the applicant's fear of reprisal if he pursues his
complaints before the authorities more vigorously is wholly without
foundation.
The Commission finds therefore that in the circumstances of this
case the applicant is not required to pursue any legal remedy separate
from the investigation commenced by the State Prosecutor (see eg. No.
19092/91, Yagiz v. Turkey, Dec. 11.10.93, to be published in D.R.75).
The Commission concludes that the applicant may be said to have
complied with the domestic remedies' rule laid down in Article 26
(Art. 26) of the Convention and, consequently, the application cannot
be rejected for non-exhaustion of domestic remedies under Article 27
para. 3 (Art. 27-3) of the Convention.
As regards the merits
The Government reject the applicant's allegations that there is
an administrative practice to violate human rights in conjunction with
discrimination against Turkish citizens of Kurdish origin. The equality
of all Turkish citizens whatever their ethnic origin is reflected
throughout Turkish society.
They further deny that the applicant's son has been detained by
either the Gendarme Command or the Security Directorate and submit that
the applicant's account of the facts has not been corroborated by two
witnesses named by him. The Government finally allege that the
applicant has stated that his son went to Syria two years previously
and that he has not seen him since.
The applicant maintains his account of events and states that his
son has never left Turkey.
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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy