AS TO THE ADMISSIBILITY OF
Application No. 26973/95
by Celalettin YÖYLER
against Turkey
The European Commission of Human Rights sitting in private on
13 January 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
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 11 March 1995 by
Celalettin Yöyler against Turkey and registered on 4 April 1995 under
file No. 26973/95;
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 8
January 1996 and the observations in reply submitted by the
applicant on 8 May 1996 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen of Kurdish origin, was born in
1941 and lives in Adapazari, Turkey. He is represented before the
Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of
the University of Essex, England.
The facts as submitted by the parties may be summarised as
follows.
A. The particular circumstances of the case
The applicant claims that the following events occurred.
Between 1966 and 1984 the applicant was the imam (religious
leader) of his village of Dirimpinar (Malazgirt district). As a result
of his involvement with a number of political organisations, including
the Social Democratic Populist Party (SHP) and the People's Labour
Party (HEP), of which he became the local leader, he was imprisoned on
a number of occasions.
In 1994 three young women from the village, all of whom were
related to the applicant's extended family, decided to join the PKK.
On 15 September 1994 the gendarme unit commander of Malazgirt came to
the village and threatened that if the women were not brought to him
within three days he would burn the village to the ground.
The applicant's family and the families of the young women,
frightened by this threat, loaded up their possessions and fled.
However the gendarmes, accompanied by special teams, forced them to
return to the village and unload their possessions. They gathered the
families into a house by force, where they assaulted certain of them,
including the applicant's wife. They withdrew from the village telling
the villagers to take good photographs of their houses as that was all
they would have to remember them by.
On 18 September 1994 at 8 p.m. special gendarme teams and village
protectors came to the village. Villagers were ordered to go into their
homes and switch off their lamps. The security forces then took diesel
oil from the barrels and tractors of the village and set fire to the
houses of the applicant and his family. The applicant was out of the
village, in izmir, when the fire occurred.
The applicant gives a complete inventory of the extent of his and
his family's losses as a result of the fire and estimates the cost of
rebuilding at 1,5 billion Turkish Lira.
On 23 September 1994 the applicant filed a criminal complaint
with the Karsiyaka prosecutor (Izmir) for the attention of the
Malazgirt public prosecutor, calling for an on-site investigation and
the institution of proceedings against the perpetrators. This document
was registered under no. 35798 by the Karsiyaka public prosecutor's
office.
On 24 September 1994 the applicant made a press statement through
a human rights body, the Human Rights Association, which was carried
the same day in the pro-Kurdish newspaper Özgür Ülke.
On 8 November 1994 the public prosecutor sent a letter (no.
31583) to the Gendarme Command at Malazgirt requesting a report on the
matters raised in the applicant's allegations. He repeated his request
in letters of 8 December 1994 (no. 30965) and 2 February 1995 (no.
31583).
By letter of 2 March 1995, the Gendarme Central Command at
Malazgirt replied to the prosecutor's letter of 8 December 1994 by
submitting the minutes of the testimonies they had taken.
The prosecutor took further testimonies in May 1995, and the
gendarme commander M.A. in June and November 1995.
Since November 1995, there has been no development in the
investigation.
The respondent Government state as follows.
The applicant left the village of Dirimpinar of his own free
will, together with his spouse and children. He settled first in
Adapazari and then Istanbul or Izmir.
The Government submit various minutes of the testimonies taken
by the authorities in relation to the burning of the applicant's house.
i. Testimonies before the prosecutor on 29 May 1995
Muhsettin Yöyler, mayor (muhtar) of Dirimpinar, declared before
the prosecutor that on the night of the incident he saw some persons
setting fire to the house of the applicant, but as they had their faces
covered, he could not recognise them. He did, however, recognise one
of them, Ahmet (A.K.), a village protector from the village of
Nurettin.
Abdulcebbar Sezen's statement revealed that the applicant was not
in the village during the incident, but that his family was.
ii. Testimonies before the gendarme commander on 19 June 1995
Muhsettin Yöyler declared to the gendarme commander M.A. that
although he saw the applicant's house burning, he did not see who set
fire to it, as it was dark. Süleyman Yilmaz et Omer Sezen made
identical statements.
iii. Testimonies before the gendarme commander on 22
November 1995
Aydin Sezen declared before the same gendarme commander M.A. that
the applicant had always acted in a subversive manner towards the
state, that his house was indeed burned, that he did not see who had
set fire to it, but that the security forces definitely did not do it.
He also added that all the villagers were pleased that the applicant
had left the village.
In a further statement, Muhsettin Yöyler told M.A. that the
applicant had always been a PKK supporter, that the applicant and his
family were not in the village on the night of the incident, that he
did not see who set fire to the house, but that he was sure that it was
not the security forces. He also stated that the applicant himself
might perhaps have done it.
Abdulcebbar Sezen told the police officer that the applicant was
a member of the PKK, that he used to be a source of trouble in the
village and that the villagers were pleased that he had left the
village. He also stated that the applicant's house was definitely not
burned by the security forces or the gendarmes and that the security
forces had always helped the villagers.
Muhlis Umulgan declared that the applicant was collaborating with
the PKK, that on the night of the incident he saw the applicant's house
burning but was afraid to go out as he knew that the PKK was in the
region at the time. He added that the security forces did not burn the
applicant's house.
As to Süleyman Yilmaz, he declared that the applicant was not in
the village when the incident occurred, that three days before the fire
his spouse and children had left the village as well, taking the
furniture, that some days before the incident security forces had been
in the village, but that during the incident they were not in the
village. He finally stated that he did not know who burned the
applicant's house but was sure that it was not the gendarmes.
The investigation could not continue in the applicant's absence.
According to a letter of 2 April 1995 from the Gendarme Central Command
Malazgirt, the applicant had left Dirimpinar for an unknown place,
probably Adapazari.
B. Relevant domestic law and practice
Civil and administrative procedures
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its own
acts and measures."
The Government assert that 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 a 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.
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 deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to oblige someone through force or threats to commit or not to
commit an act (Article 188),
- to issue threats (Article 191),
- to make an unlawful search of someone's home (Articles 193 and
194),
- to commit arson (Articles 369, 370, 371, 372), or aggravated
arson if human life is endangered (Article 382),
- to commit arson unintentionally by carelessness, negligence or
inexperience (Article 383), or
- to damage another's property intentionally (Article 526 et seq.).
For all these 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 of the public 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 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 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 public 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 that his house and possessions along with
those of other residents related to him in the village of Dirimpinar
were burned and destroyed by security forces. He invokes Articles 3,
8, 13, 14 and 18 of the Convention and Article 1 of the First Protocol.
As to Article 3, the applicant submits that the security forces
threatened him and his immediate family with reprisals because three
young women had left the village to join the PKK. He alleges that the
destruction of his home and possessions constitutes inhuman treatment
or punishment.
As to Article 6, he submits that his right to access to court to
vindicate his civil rights has been denied through the failure of the
public prosecutor to act.
As to Article 8, he submits that the destruction of his family
home and the homes of his extended family constitutes an interference
with his home and with his family life, for which there is no
justification under Article 8 para 2.
As to Article 13, he submits that there is an administrative
practice of violation of this Article in South East Turkey. He refers
to the arguments on the violation of that Article in the related
Application No. 21893/93, Akdivar and others v. Turkey, dec. 19.11.94,
and relies on the said arguments mutatis mutandis.
As to Article 14, in conjunction with Articles 3, 6, 8 and 13 of
the Convention and Article 1 of the First Protocol, he complains that
he was a victim of discrimination in the enjoyment of his rights under
these Articles on grounds of race or ethnic origin.
As to Article 18, he submits that the destruction of his own and
the villagers' homes and possessions is completely foreign to the
Convention system and cannot be said to have a purpose prescribed by
the Convention in the restriction of the rights and freedoms
guaranteed.
As to Article 1 of Protocol No. 1, he complains that he has been
deprived of the peaceful enjoyment of his possessions in a manner that
was wholly unwarranted.
As to the exhaustion of domestic remedies, he considers that he
has sought to exhaust local remedies to no avail. The applicant
alternatively submits that there is an administrative practice of not
respecting the rule in Article 13 of the Convention which requires the
provision of effective domestic remedies. In such circumstances, the
applicant considers that there are no practical local remedies since
the injury he complains of was the result of a deliberate State policy
of destruction of villages and expulsion of their inhabitants in South
East Turkey.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 March 1995 and registered
on 4 April 1995.
On 4 September 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 8 January
1996 after an extension of the time-limit fixed for that purpose. The
applicant replied on 8 May 1996, also after an extension of the time-
limit.
THE LAW
The applicant alleges that on 18 September 1994 his village was
raided by gendarmes. He claims that during the raid his home and
possessions were destroyed, together with those of other villagers
related to him. The applicant invokes Article 3 (Art. 3) of the
Convention (the prohibition on inhuman and degrading treatment),
Article 6 (Art. 6) (the right of access to court), Article 8 (Art. 8)
(the right to respect for family life and the home), Article 13
(Art. 13) (the right to effective national remedies for Convention
breaches), Article 14 (Art. 14) (prohibition on discrimination),
Article 18 (Art. 18) (the prohibition on using authorised Convention
restrictions for ulterior purposes), as well as Article 1 of Protocol
No. 1 (P1-1) to the Convention (the right to property).
Exhaustion of domestic remedies
The Government submit that the application is inadmissible since
the applicant has failed to exhaust domestic remedies as required by
Article 26 (Art. 26) of the Convention before lodging the application
with the Convention. They contend that although the applicant filed
a formal complaint with the public prosecutor, he failed to pursue it.
The Government point out that the applicant disappeared immediately
after filing his complaint with the prosecutor and that the authorities
were unable to trace him. The Government consider that the applicant
was not willing to pursue his complaint before the prosecutor.
In respect of damage alleged to have been caused by the State,
the Government submit that the applicant could have introduced an
action for compensation before the administrative courts, which give
judgments on the basis of "absolute" or strict liability of the
administration or on the basis of fault or negligence on the part of
the administrative agents. They refer to various judgments of the
highest administrative court (Council of State, Conseil d'Etat) and
other administrative courts, which have held that the administration
was objectively liable for damage caused by terrorist acts in the state
of emergency areas.
The Government point out that the applicant could also have
lodged a claim for compensation in an ordinary civil court, on the
basis of the Code of Obligations. They submit in this respect that a
civil action for damages is independent from a criminal action and
refer to domestic judgments where the claimants obtained damages
regardless of criminal liability.
The applicant maintains that, by filing an application before the
prosecutor, he exhausted domestic remedies. He refers to the length
of the time which the investigation is taking and submits that there
is no effective investigation being conducted into the destruction of
his belongings. He also submits that there is no possibility of an
adequate investigation due to the fact that A.M., the gendarme charged
by the prosecutor with carrying out the investigation, is not willing
to have an effective investigation. He points out in this respect that
the only identified suspect, a village protector, has never been
arrested and that he is under the orders of A.M.
As regards the exhaustion of administrative and civil remedies,
the applicant refers to the case of Akdivar and others v. Turkey (N°
21893/93), where the Commission had found that the applicants were not
required to exhaust these remedies.
The Commission recalls that Article 26 (Art. 26) of the
Convention requires only the exhaustion of such remedies as relate to
the breaches of the Convention alleged and can at the same time 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 judgement 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 18 September
1994 and that the applicant filed a complaint with the public
prosecutor on 23 September 1994. It appears that the competent public
prosecutor started the investigation in November 1994, when he wrote
a letter to the Gendarme Command at Malazgirt requesting them to take
action. He repeated the request in December 1994 and February 1995.
Both the public prosecutor and the gendarmes continued the
investigation throughout May and June 1995 by taking statements. It
also appears that on 19 June 1995 the Malazgirt Gendarme Command sent
the prosecutor minutes of various testimonies. On 25 October 1995 a
warrant of arrest for the identified suspect Ahmet Kinay was issued by
the public prosecutor, and in November 1995 a gendarme commander took
further statements.
The Commission has not been informed of any findings made as a
result of this investigation. Nor has it been informed about the
reasons of not taking action against the suspect A.K.
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 as a result of the
applicant's criminal complaint (see Eur. Court HR, Akdivar and others
v. Turkey judgment of 16 September 1996, Reports 1996-I, paras. 71-75).
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.
As regards the merits
The Government submit that there is no evidence that the
applicant or his spouse has been subjected to treatment contrary to
Article 3 (Art. 3) of the Convention or that the applicant was
discriminated against, non-discrimination on the basis of race,
religion, language or conviction being guaranteed by the Turkish
Constitution. They also submit that the complaint of lack of access
to court is manifestly ill-founded as the applicant abandoned his
complaint before the prosecutor, that the applicant and his family had
already left the village when the incident occurred and that there is
no evidence to show that the applicant's house was burnt by security
forces. On the contrary, according to the statements taken by the
gendarmes, neither the security forces nor the gendarmes were in the
village that night.
The Government conclude that the State is not responsible for the
burning of the applicant's house, which was the result of a private
dispute.
Finally, the Government contend that the applicant's rights were
not restricted in any way.
Accordingly, the Government consider that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicant maintains that his account of events is accurate.
He maintains his complaints outlined above, which he claims are
substantiated.
He submits in this respect that A.K., a village protector in
Nurettin village under the command of the gendarme M.A., had been
identified as being one of the persons who set fire to his house.
The applicant also points out the contradictions in the
statements of Muhsettin Yöyler, Abdulcebbar Sezen and Süleyman Yilmaz
before the prosecutor and the gendarme.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The
Commission concludes, therefore, that the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy