TiMURTAS v. TURKEY



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)