FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28293/95   Application no. 29494/95

by Kasım AYDIN    by Cemal AYDIN

against Turkey     against Turkey

Application no. 30219/96

by Sultan AYDIN and 10 Others

against Turkey

The European Court of Human Rights (First Section) sitting on 1 February 2000 as a Chamber composed of

Mrs E. Palm, President,

Mr J. Casadevall,

Mr Gaukur Jörundsson,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, judges,

Mr  F. Gölcüklü, ad hoc judge

and Mr M. O'Boyle, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to:

- Application no. 28293/95, introduced on 1 August 1995 by Kasım Aydın against Turkey and registered on 23 August 1995;

Application no. 29494/95, introduced on 22 November 1995 by Cemal Aydın against Turkey and registered on 7 December 1995;

Application no. 30219/96, introduced on 5 October 1995 by Sultan Aydın and 10 Others against Turkey and registered on 15 February 1996;

 

 Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 16 September 1996 (no. 28293/95), 18 April 1997 (no. 29494/95) and 24 November 1997 (no. 30219/96) and the observations in reply submitted by the applicants on 7 November 1996 (no. 28293/95), 11 June 1997 (no. 29494/95) and 13 January 1998 (no. 30219/96);

Having deliberated;

Decides as follows:

 

THE FACTS

The applicants are twelve Turkish citizens of Kurdish origin. They are the spouse and eleven children of Müslüm Aydın, who was born in 1938. The applicants' particulars are appended to this decision. All applicants reside in Hozat in Tunceli Province.

The applicant in Application no. 28293/95 is represented by Professor Kevin Boyle and Professor Françoise Hampson, both university teachers at the University of Essex (United Kingdom). The applicant in Application no. 29494/95 is represented by Mr Kâzım Genç, a lawyer practising in Ankara. The applicants in Application no. 30219/96 are also represented by Mr Kâzım Genç.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1994, Müslüm Aydın and his family resided in Dürüt (Derindere), a hamlet attached to the village of Sarısaltık in Tunceli Province in south-east Turkey.

At the beginning of October 1994, military operations took place in Tunceli Province. At that point in time Kasım Aydın, the oldest son of Müslüm Aydın, was living in Hozat. After having learned of the military operations, he went to Dürüt in order to take his parents and siblings to Hozat. Kasım's mother and siblings went with him to Hozat. His father decided to stay in Dürüt to tend his beehives.

On 11 October 1994, together with an uncle, Kasım Aydın returned to Dürüt, where he found that his family home and possessions had been burned, including 150 of their beehives. He further found that 70 of his family's black goats had been shot dead, that 10 goats were injured and that 84 goats were missing. Kasım Aydın found traces of footprints of military boots and empty cartridges.

Kasım Aydın did not find his father in Dürüt. He learned from inhabitants of Kızılkilise, a nearby hamlet attached to the village of Bilekli, that his father had been taken away by soldiers. The villagers told him that they had seen Müslüm Aydın, who had had a rucksack on his back, walking in front of soldiers; he had guided the soldiers.

On their way back to Hozat, Kasım Aydın and his uncle came across a place where soldiers had apparently stayed overnight; they found leftovers of the soldiers' meal. It appeared that the soldiers had eaten some of the goats belonging to Kasım's family; the head of a slaughtered goat was still hanging on a tree.

On 14 October 1994, Kasım Aydın filed a petition with the Office of the public prosecutor of Hozat requesting an investigation into his father's disappearance and the destruction of his family home and possessions. In his petition, Kasım Aydın declared that, presumably on 8 and 9 October 1994, military forces had come to Dürüt where they had burned his family home and possessions. He had learned from villagers that, when the military operation had started, his father had been made to walk in front of soldiers. Kasım Aydın addressed a copy of this petition to the Office of the Prime Minister, the Office of the State of Emergency Provincial Governor, the Office of the Provincial Authorities and the Hozat District Gendarmerie Command.

On 21 October 1994, Kasım Aydın filed a second similar petition with the Office of the Hozat public prosecutor. Public prosecutor Burhan Özkan formally registered this second petition under Nr. 1994/232 on the same day and opened an investigation.

Also on 21 October 1994, Burhan Özkan took a statement from Kasım Aydın, who declared that, on 8 or 9 October 1994, a military operation had been conducted in the vicinity of Dürüt, namely around Gicori, a hamlet attached to the village of Akören. Abdullah and Hüseyin, two villagers from Kızılkilise, had told him that they had seen his father Müslüm Aydın being taken away by soldiers.

On 9 January 1995, Hozat public prosecutor Okan Kılınç took an additional statement from Kasım Aydın. In this statement, Kasım Aydın gave the surnames and addresses of the witnesses Abdullah and Hüseyin. On the same day, Okan Kılınç issued a summons ordering Abdullah Kalem, at that time residing in Mersin (İçel Province), to appear before the Mersin public prosecutor in order to give a statement in relation to Kasım Aydın's petition.

On 16 January 1995, apparently after having been invited thereto, Hüseyin Durgun gave a statement to Okan Kılınç. This statement, in so far as relevant, reads:

<Translation>

“I am from Kızılkilise ... I know Müslüm Aydın personally. It takes one-and-a-half hours to travel between our villages. On 3 or 9 October, I do not remember the exact date, I saw Müslüm Aydın amongst soldiers in our village. There were about 100 soldiers. He seemed to be sad. Insofar as I could see, there were no traces of blows or coercion on his body. I do not know who the soldiers were. They were strangers to me. I do not know where they took him. I saw him together with the soldiers for about 15-20 minutes near the fountain in front of my house. ...”

In a pro forma letter of 26 January 1995, in which reference is made to the Provincial Governor's letter of 21 October 1994, the Hozat District Governor Günay Özdemir informed Kasım Aydın as follows:

<Translation>

“The petition dated 14.10.94 ..., presented by Kasım Aydın ... to the ... Office of the Tunceli Provincial Governor in the matter of aid and resettlement on grounds that he has been wronged in having had to migrate from his village as a consequence of military operations having been conducted in the region, has been examined. The inhabitants of in total nine villages in our <Hozat> District have left their homes for fear of terrorist organisations and concerns for their safety. Some of these people have moved to ... Hozat and others have moved to other provinces and districts. Following the resolution of their housing problems by making available either official or private accommodation, those persons who have moved to Hozat have been given aid in the form of food and money. This aid currently continues to be provided and this Office <of the District Governor> has attempted, by all possible means, to resolve all problems of these persons. As regards the request of the aforementioned <Kasım Aydın> for resettlement, the petitioner has not fulfilled the conditions of Housing Law Nr. 2510. As there is no other legal basis <for resettlement>, there are no <other> procedures that can be initiated in respect of this request. ...”

On 14 February 1995, noting that Kasım Aydın's petition concerned in fact two issues, Okan Kılınç decided to split the investigation in two separate case-files. The investigation of the alleged destruction of the house and property of the Aydın family remained registered under case-file Nr. 1994/232. The investigation of the disappearance of Müslüm Aydın was registered under case-file Nr. 1995/10.

On 15 February 1995, Kasım Aydın addressed a petition to the Ministry of the Interior in which he described the situation of his family and repeated his account stated in his previous petitions. This petition has remained unanswered.

The further investigation nr. 1994/232 of the destruction of the Aydın family home and possessions

On 24 February 1995, Okan Kılınç issued a decision of lack of jurisdiction (görevsizlik kararı) in the investigation registered under nr. 1994/232. In this decision, it is stated that actions of security forces under the orders of the Governor of a region where the State of Emergency is in force are subject to the Act on Proceedings on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu) and that, consequently, the case-file was to be transmitted to the Hozat District Administrative Council (İlçe İdare Kurulu).

In a pro forma letter dated 26 April 1995 and signed by the Hozat District Governor Günay Özdemir, Kasım Aydın was informed - in reply to his request of 21 October 1994 - that the Hozat Administrative Council had determined his request for an investigation on the basis of information supplied on 6 February 1995 by the Hozat District Gendarmerie Command. According to this information, the security forces in the district had definitely not been involved in the burning of houses in his village. Referring to the decision 1991/1101 of the Council of State (Danıştay) in the case nr. 1991/9322, the Hozat District Administrative Council recalled that, pursuant to the Act on Proceedings on the Prosecution of Civil Servants, an investigation against a civil servant can only be conducted where the civil servant concerned has been accurately identified. Failing any accurate identification, no investigation can be carried out. As the perpetrators of the burning of the petitioner's house and property had not been identified, no investigation of the petitioner's complaint could be conducted.

The investigation nr. 1995/10 of the disappearance of Müslüm Aydın

By letter of 7 March 1995, Okan Kılınç requested the Office of the public prosecutor at the State Security Court (Devlet Güvenlik Mahkemesi) of Erzincan, under whose jurisdiction Tunceli Province falls, to inform him whether or not Müslüm Aydın and four other persons, i.e. Ahmet Akbaş, Hasan Çiçek, İbrahim Gençer and Nazım Gülmez, were being held in detention.

By letter of 22 March 1995, in reply to a letter of 13 March 1995, the Director of a prison in Kayseri informed the Office of the public prosecutor at the State Security Court in Kayseri that Müslüm Aydın and the four other persons mentioned in Okan Kılınç' letter of 7 March 1995 were not being detained in this prison.

On 23 March 1995, Abdullah Kalem gave a statement to the police in Mersin. This statement, insofar as relevant, reads:

<Translation>

“I used to reside in the hamlet of Kızılkilise ... I know Müslüm Aydın and Kasım Aydın personally because they were living in the hamlet of Gicori attached to the village of Akören, which <hamlet> is near to our hamlet. When I was in the village in October 1994, Müslüm Aydın came to our village together with soldiers. He was guiding the soldiers. After having stayed two days in the village they left. The persons with him <Müslüm Aydın> were soldiers. I did not see him again. I do not know where he went. I have not seen any sheep being killed. I heard later that his house had been burned. I do not know who  
burned it. Neither do I know who killed his sheep. The only thing I know about this incident is that, I guess on 7 October 1994, Müslüm Aydın came to our hamlet and after having stayed two nights in the forest near our hamlet, he left the hamlet together with the soldiers.” 

On 29 March 1995, referring to the letter of 7 March 1995 and case-file Nr. 1995/10, the Director of a prison in Erzurum informed the Office of the public prosecutor in Erzurum that Müslüm Aydın and the four other persons mentioned in Okan Kılınç' letter of 7 March 1995 were not being detained in this prison.

On 16 May 1995, Okan Kılınç requested the Hozat District Gendarme Command to be informed about what steps had been taken by the latter in the investigation of the disappearance of Müslüm Aydın.

On 8 June 1995, the applicants' lawyer Mr Kâzım Genç took a statement from Hüseyin Durgun. According to this statement, Hüseyin Durgun had seen Müslüm Aydın together with soldiers in Kızılkilise, but he had not seen who had burned Müslüm's house or who had killed the latter's livestock.

By letter of 30 June 1995, in reply to the letter of 16 May 1995, the Hozat District Gendarme Commander Sebahattin Toprak informed the Hozat public prosecutor that, according to the investigation conducted into the disappearance of Müslüm Aydın, the village of Sarısaltık was still uninhabited and that it had not been possible to obtain any further information.

By letter of 25 July 1995, the applicants' lawyer Kâzım Genç informed the Office of the Hozat public prosecutor that, according to rumours circulating in the region, Müslüm Aydın had been killed by soldiers and that he was buried in an unknown place. Reminding the Office of the public prosecutor of the fact that kidnapping constitutes a criminal offence under Turkish law and of the domestic authorities' investigatory obligations under Article 2 of the Convention, which formed a part of domestic Turkish law, Mr Genç requested the Hozat public prosecutor to conduct the necessary investigation and to remedy the unjust manner in which the victims of this offence were being treated.

On 1 August 1995, Okan Kılınç informed the Hozat District Gendarme Command that he had issued a permanent search warrant for Müslüm Aydın and that, consequently, the Office of the Hozat public prosecutor should be informed every three months of any results of the investigation conducted by the Gendarmerie. On the same day, Okan Kılınç issued a decision joining the investigation case-files nos. 1995/10 and 1995/84 as both files concerned the same subject matter. The respective subject matters of these two investigation case-files are, however, not specified in this decision. The joint investigation remained registered under nr. 1995/10.

On 8 August 1995, the Hozat District Gendarme Commander Hayati Aydın informed the Hozat public prosecutor that, despite all efforts made, Müslüm Aydın had not been found. He confirmed that the matter would be looked into every three months until it would become time-barred.

In a statement taken on 15 August 1995 by the gendarme Sergeant Mevlüt Olgun, the Muhtar of Sarısaltık, Bayram Kahraman, stated that Müslüm Aydın had not yet been found, that nobody knew where Müslüm Aydın was and that he would inform the gendarme authorities of any developments.

On 18 October 1995, Okan Kılınç issued a decision of lack of jurisdiction in the investigation registered under Nr. 1995/10. The reasons stated in this decision are similar to those stated in his decision of 24 February 1995 concerning the investigation registered under Nr. 1994/232. Consequently, the case-file Nr. 1995/10 was transmitted to the Hozat District Administrative Council.

By letter of 24 October 1995 - in response to a petition filed on 12 October 1995 by Kasım Aydın with the Office of the Hozat public prosecutor concerning case-files transmitted to the Hozat District Governor, the latter informed Kasım Aydın that it was not possible to investigate Kasım Aydın's allegations about the destruction of his family home and possessions and the disappearance of his father Müslüm Aydın in the absence of an accurate identification of the civil servant allegedly responsible.

Proceedings before the Hozat Civil Court of General Jurisdiction

On 9 October 1995, Kasım Aydın applied to the Hozat Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) for a judicial declaration that his father was legally presumed dead so as to enable him to exercise his inheritance rights.

Three witnesses gave oral evidence before this court. The witness Polat Dilek stated that he had seen Müslüm Aydın for the last time in August or September 1994 and that, since then, he had not heard from him again and that he assumed that Müslüm was dead. The witness Seyfi Kahraman declared that he had seen Müslüm Aydın for the last time in September 1994, that he had not heard from him since and that he had heard that Müslüm Aydın had been taken away by soldiers during the military operation in September 1994. He further declared that, during the military operation in September 1994, the house of Müslüm Aydın had been shot at and had subsequently burned. The witness Mehmet Tekin stated that he had seen Müslüm Aydın, who had been from his village, for the last time during the military operation in September 1994. He had heard that, during this military operation, Müslüm Aydın had been taken away by soldiers. He had not seen that himself. He did not know what had happened to Müslüm Aydın and assumed that Müslüm Aydın was dead.

By letter of 19 June 1996, a judge at the Hozat Civil Court of General Jurisdiction requested the Hozat public prosecutor to make available the prosecutor's case-file concerning the disappearance of Müslüm Aydın. The Hozat public prosecutor was requested to submit the file before 19 July 1996, when a hearing on Kasım Aydın's request for a judicial declaration as to the presumed death of Müslüm Aydın was scheduled.

Further developments and proceedings

By letter of 28 December 1995, the District Governor Mahmut Çuhadar informed the Office of the Provincial Authorities Offices of Tunceli that the disappearance of Müslüm Aydın and burning of the latter's home and possessions could not be investigated as the civil servants involved in the incident could not be identified and as no information in this respect could be obtained from the Hozat District Gendarme Command. As information was needed from the competent authorities as to which security forces were in charge of a military operation conducted on 8-9 October 1994 around the hamlet of Dürüt - which forces could have captured and taken away Müslüm Aydın - the District Governor requested the Office of the Provincial Authorities to do the necessary to obtain this information.

 

On 28 February 1996, Tunceli Provincial Gendarme Headquarters informed the Office of the Provincial Authorities of Tunceli that no military operation had been conducted on 8-9 October 1994 in the hamlet of Dürüt, that it was unknown when and by whom Müslüm Aydın was supposed to have been captured and that there were no witnesses to this incident.

On 12 March 1996, the Hozat District Governor, Mahmut Çuhadar, in his capacity of the President of the Hozat District Administrative Council addressed a letter to the Office of the Provincial Authorities of Tunceli requesting a legal consultation about the disappearance of Müslüm Aydın and five other persons who had all allegedly disappeared in September and/or October 1994 in the course of military operations conducted during that period in the region of Hozat.

By letter of 4 April 1996 the Office of the Prime Minister informed Kasım Aydın that his petition had been noted. The letter does not specify the date or nature of this petition. Kasım Aydın was informed that his petition had been transmitted to the Office of the Provincial Authorities of Tunceli for further action and that this Office would inform him of any findings.

By letter of 22 April 1996, the District Governor Mahmut Çuhadar informed the Office of the Provincial Authorities of Tunceli that Kasım Aydın had been provided with financial aid in an amount of TRL 11,581,000 and that, under Article 22 of the Anti-Terror Law nr. 3713, Kasım Aydın had requested an additional amount of TRL 2,265,000,000 for compensation from the Social Help and Solidarity Fund.

By letter of 25 April 1996, referring to a letter of the International Law and Foreign Affairs Directorate of the Ministry of Justice, a judge at the Hozat Civil Court of General Jurisdiction explained to the Office of the Hozat public prosecutor that Kasım Aydın had not requested a judicial determination of damages incurred as a result of terrorist activities, but a judicial declaration that his father was legally presumed dead.

On 26 April 1996, the Hozat District Governor Mahmut Çuhadar informed the Office of the Hozat public prosecutor that the investigation into the disappearance of Müslüm Aydın was still ongoing, that no final decision in this investigation had yet been taken and that no investigation could be conducted of the burning of the house of Müslüm Aydın since the perpetrators had remained unidentified.

By letter of 6 May 1996 which refers to the application brought by Kasım Aydın to the European Commission of Human Rights (hereinafter “the Commission”), the General Gendarme Command in Ankara informed the Directorate of the Council of Europe, Human Rights and the OSCE of the Ministry of Foreign Affairs that, as a result of attacks by terrorist organisations in the Tunceli region, Kasım Aydın had moved to a house in Hozat which was owned by his father and that, upon his request, he had been granted financial aid amounting to TRL 11,581,000. The letter further mentions that Kasım Aydın had filed a request on 27 March 1996 with the District Governor for compensation for loss of livestock (beehives and goats) as a result of terrorist attacks in October 1994. Following the investigation in relation to this request, it had been decided to grant compensation to Kasım Aydın. Consequently and to this end, an amount of TRL 2,265,000,000 had been requested from the Social Help and Solidarity Fund under Article 22 of the Anti-Terror Law nr. 3713.

On 13 June 1996 the Social Help and Solidarity Fund held that Kasım Aydın's request for compensation was not reasonable. It decided that he would be financially compensated within the limits of the Fund's financial recourses “in case of a determination of the continuance of his losses” (“adı geçenin mağduriyetinin devam ettiğinin tespiti halinde”).

On 26 June 1996, with reference to the District Governor's letter of 12 March 1996, the Tunceli Provincial Deputy Governor informed the Hozat District Governor of the reply dated 14 June 1996 by the National Police Headquarter at the Ministry of the Interior in Ankara, i.e. that the police authorities would assist the responsible public prosecutor in the investigation of offences as long as these investigations were ongoing and as long as they had not become time-barred.

On 1 July 1996, Kasım Aydın gave a statement to the Gendarme Sergeant Şenel Kavak in which he confirmed that his father Müslüm Aydın was still missing, that his body had not been found and that, therefore, he had sought to obtain a judicial declaration that his father was legally presumed dead.

By letter of 17 July 1996, the Hozat District Administrative Council informed the Office of the Hozat public prosecutor, in relation to both the disappearance of Müslüm Aydın and the burning of his property, that - according to information supplied by the competent authorities - no operation had been conducted in Dürüt and that the perpetrators had remained unidentified. Therefore, and in the absence of any evidence, the Administrative Council would not be competent to open an investigation. Moreover, in the absence of evidence that the perpetrators were security forces, the Office of the District Governor was not competent to issue a permanent search warrant for Müslüm Aydın. Consequently, the investigation was to be transmitted back to the Office of the public prosecutor for a continuation of this investigation under the regular procedure.

On 29 July 1996, Kasım Aydın filed petition with the President and Prime Minister in relation to his father. He explained that he had requested compensation in an amount of TRL 2,265,000,000 from the Social Help and Solidarity Fund, which he had been unable to obtain given the Fund's lack of financial resources. On 14 August 1996, the Office of the Prime Minister informed Kasım Aydın that his petition had been transmitted for examination to the Ministry of the Interior.

On 1 August 1996 - in response to a complaint filed by all applicants about the disappearance of Müslüm Aydın which had been registered under case nr. 1996/59 after it had been transmitted on 17 July 1996 by the Hozat District Administrative Council to the Office of the public prosecutor - the Hozat public prosecutor Ahmet Cengiz issued a decision of lack of jurisdiction. In the light of the evidence given by Abdullah Kalem and Hüseyin Durgun and the fact that, apart from Müslüm Aydın, five other persons had also disappeared during the same period, Ahmet Cengiz found it established that there had in fact been a military operation at the relevant time. Noting that a dispute had arisen between the Hozat District Administrative Council and the Office of the Hozat public prosecutor as to which authority had jurisdiction over the matter and referring to a decision taken on 5 July 1996 by the Jurisdiction Disputes Court (Uyuşmazlık Mahkemesi), Ahmet Cengiz held that offences committed by military staff in the course of their fight against terrorism were to be examined by the military courts. Consequently, he decided that the investigation was to be transmitted to the Office of the 8th Army Corps Command.

On 23 September 1996, the Hozat District Deputy Governor informed the Office of the Provincial Authorities of Tunceli that Kasım Aydın's request for compensation from the Social Help and Solidarity Fund had not been reasonable and that he could only be granted compensation within the financial limits of the resources of this Fund. The Deputy Governor's letter further stated that Kasım Aydın had thus received compensation in an amount of TRL 27,583,000 and that there were no additional resources to grant him a higher amount.

On 10 October 1996, the 8th Army Corps Command assistant prosecutor in Elazığ, Captain N. Kemal Urhan, issued a decision of lack of territorial jurisdiction (yetkisizlik kararı) as, at the relevant time, the “Bolu” 2nd Commando Brigade Command was responsible for military operations in the region of Hozat-Ovacık. As his office was not competent to examine matters concerning the 2nd Commando Brigade Command, he decided to transfer the case to the Office of the military prosecutor of the Ankara 4th Army Corps Command.

In a copy - certified on 24 February 1997 by the Gendarme Commander Hayati Aydın -of an undated joint statement by the four gendarmes Hasan Evren, Şenel Kavak, Özkan Duran and Mete Semiz, as submitted to the State Security Court of Malatya in connection with proceedings against a person named Sinan Gül in which the question had arisen whether on 5 October 1995 there had been a clash in Dürüt, it is stated that, on 8 October and continued on 9 October 1994, a clash had taken place in the Tunceli-Ovacık-Bilgeç region in the course of which 22 terrorists and 2 soldiers had been killed and that this clash was recorded in the gendarme incident report with the reference HRK: 0622-988-94/22238 of 13 October 1994.

On 6 March 1997, the General Gendarme Command in Ankara informed the Ministry of Foreign Affairs that the 2nd Commando Brigade Command had conducted military operations in the Hozat-Ovacık District in the province of Tunceli, but that no such operation had been conducted in the area of Sarısaltık-Derindere where Müslüm Aydın had resided.

On 10 March 1997, the Army General Staff (Genel Kurmay Baskanlığı) informed the Ministry of Foreign Affairs that the preliminary investigation of Cemal Aydın's application to the Commission was ongoing. However, on the grounds that this preliminary investigation was confidential, it was not possible to disclose the entire case-file. Should information be required, such information could nevertheless be made available as long as its confidential nature would be respected.

On 29 September 1997, the Gendarmerie General Command prosecutor (Jandarma Genel Komutanlığı Savcısı), Ali Çakmakkaya, issued a decision of lack of jurisdiction in respect of the disappearance of Müslüm Aydın and eight others having disappeared and/or found dead in September and October 1994 in the Hozat region. As regards the case of Müslüm Aydın, all applicants are recorded as complainants in this decision.

In this decision, it is noted that, between 29 September 1994 and 31 October 1994, the 2nd Commando Brigade Command had conducted military operations in the northern part of the province of Tunceli and in the Tunceli-Ovacık region. There were, however, no witnesses of the alleged taking away by soldiers of the nine persons reported missing. Ali Çakmakkaya noted that all evidence available was of a hearsay nature. He had examined all military maps and other relevant documents concerning the period of July-September 1994. If local persons had been used as guides, this would have been recorded. A number of local persons had in fact  
been used as guides and their names had in fact been duly recorded. He further noted that the PKK and other terrorist organisations (TKP/ML, Partizan, Tikko, Dev-Sol and TDKP) were very active in the region. They had been in control of the road and had even used helicopters for transportation purposes.

Ali Çakmakkaya's decision further states that, contrary to the 2nd Commando Brigade Command which had always respected the law and had showed humanity towards the civilian population, these terrorist organisations had exploited the local population in the region, had disseminated propaganda and had committed various offences involving violence and killings while trying to make it appear as if these offences had been committed by security forces. Against this background and noting that the only evidence available was of a hearsay nature as well as the absence of any reasonable explanation as to why the security forces would have arbitrarily taken nine persons with them, he considered that it was not possible to hold the 2nd Commando Brigade Command responsible for the disappearance and/or killing of the nine persons concerned. On the basis of the information and documents available, it could only be concluded that the terrorist organisations were responsible for what had happened to these nine persons. Having reached this conclusion, he considered that, therefore, the case should be transmitted to the Malatya State Security Court in whose jurisdiction the province of Tunceli lies.

It appears that the Office of the public prosecutor at the Malatya State Security Court has opened an investigation, registered under nr. 1998/72, which is currently still pending.

B. Relevant domestic law and practice

i. Criminal law and procedure

Under the Turkish Criminal Code (Türk Ceza Kanunu) unlawful deprivation of liberty (Article 179 generally, Article 181 in respect of civil servants), coercion through force or threats (Article 188), arson (Articles 369-372), aggravated arson if human life is endangered (Article 382), unintentional arson by carelessness, negligence or inexperience (Article 383), all forms of intentional homicide (Articles 448-455), unintentional homicide (Articles 452 and 459), intentional infliction of damage to someone's property (Articles 516 and 517) and to harm or kill arbitrarily another person's animal (Article 521) constitute criminal offences.

   For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu), with the public prosecutor or the local administrative authorities. Under Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duty is liable to imprisonment. 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 a suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. If it concerns a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and the pertaining rules of criminal procedure.  
Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353).

ii. State of Emergency

   Since approximately 1985, serious disturbances have raged in the south-east part of Turkey between security forces and members of the PKK. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.

   Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a State of Emergency Regional Governorate in ten of the eleven provinces of south-eastern Turkey, including the Province of Tunceli. Under Article 4(b) and (d) of the Decree, all private and public security forces and the Gendarme Public Peace Command are at the disposal of the Regional Governor.

   The second, Decree no. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:

<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 damage suffered by them without justification.”

iii. Prosecution for terrorist offences and offences allegedly committed by    members of the security forces

   Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”.

   Pursuant to section 9 (a) of Law no. 2845 on the Procedure in the State Security Courts, public prosecutors are deprived of jurisdiction in cases of alleged terrorist offences in favour of a separate system of State Security prosecutors and courts established throughout Turkey. Only these courts are competent to try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.

   Public prosecutors are also deprived of jurisdiction with regard to offences alleged against members of the security forces in the State of Emergency Region. Article 4 § 1 of the Decree no. 285 provides that all security forces under the command of the Regional Governor shall be subject, in respect of acts performed in the course of their duties, to the Law on Proceedings on the Prosecution of Civil Servants.

 

 Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must issue a decision of non-jurisdiction and, depending on the suspect's status, transfer the file to either the District or the Provincial Administrative Council (İlçe or İl idare kurulu). These councils are made up of civil servants and are chaired by the District or Provincial Governor. They conduct the preliminary investigation and decide whether or not to prosecute. These councils have been criticised for their lack of legal knowledge, as well as for being easily influenced by the District or Provincial Governors, who also head the security forces.

An appeal against a decision by a District Administrative Council lies with the Regional Administrative Court (Bölge İdare Mahkemesi). If a decision not to prosecute is taken, the case is automatically referred to that court. An appeal against a decision taken by a Provincial Administrative Council lies with the Council of State (Danıştay). If a decision not to prosecute is taken, the case is automatically referred to the Council of State.

If a decision to prosecute has been taken, the case is referred to the public prosecutor for further action.

iv.  Constitutional provisions on administrative liability

   Article 125 of the Turkish Constitution provides as follows:

<Translation>

All acts and decisions of the Administration are subject to judicial review ... The Administration shall be liable for damage caused by its own acts and measures.”

   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 the 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.

Under section 13 of Law no. 2577 on administrative proceedings, anyone who has sustained damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring proceedings before the administrative courts, whose proceedings are in writing.

v.  Civil law provisions

   Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Civil Obligations (Borçlar Kanunu), an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Civil Obligations and non-pecuniary or moral damages awarded under Article 47 of this Code. The civil courts are not bound by the findings of a criminal court as to a defendant's liability (Article 53).

However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of the exercise of official duties by a civil servant may, in principle, only bring an action against the public authority in whose service the civil servant concerned works and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Civil Obligations). If, however, the act is found to be illegal or tortious and, consequently, is no longer considered as an “administrative” act or deed, the civil courts may allow a claim for damages against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Civil Obligations).

COMPLAINTS

1. All applicants complain under Article 2 of the Convention that Müslüm Aydın has disappeared after having been taken away by the security forces and that it must be presumed that he was killed by the security forces. The applicants submit that an unacknowledged taking into detention constitutes a violation of the right to life as it seriously increases the risk of the loss of life of the “disappeared” person.  

2. All applicants complain under Article 1 Protocol 1 of the Convention on account of the destruction of their family home and possessions, including the killing and disappearance of livestock.

3. The first applicant, Kasım Aydın, further complains that the anxiety and pain suffered by himself and his family caused by the disappearance and uncertain fate of his father as well as the destruction of his family home and possessions forcing him and his family to abandon their village for an unsecured existence elsewhere in conjunction with the State's refusal to provide him and his family with adequate support and assistance amount to treatment contrary under Article 3 of the Convention.

4. The first applicant complains under Article 5 of the Convention that his father's disappearance and the destruction of his family home and possessions constitute a violation of the right to liberty and security.

5. The first applicant complains under Article 6 of the Convention that he was deprived of his right to a civil remedy in relation to the destruction of his family home and possessions. He refers in this respect to the reply from the Hozat District Governor of 26 January 1995 as evidence of the State's attitude to those claiming that their house had been burned down.

6. The first applicant complains under Article 8 of the Convention that the destruction of his family home and possessions is a violation of his and his family's right to respect for private and family life.

7. The first applicant complains under Article 13 of the Convention that he had no effective domestic remedies as regards the violations of his and his family's rights under the Convention.

 

8. Relying on Article 14 of the Convention in conjunction with Articles 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1, the first applicant also complains in respect of the destruction of his family home and possessions that he and his family are subjected to discrimination on grounds of their ethnic origin, their belonging to a national minority and their Alevi belief.

9.  The first applicant complains that the policy pursued by the Turkish authorities, in allowing the military to have a free hand to suppress the problems in South East Turkey by methods which include the evacuation and destruction of villages in the South East Turkey, constitutes a violation of Article 18 of the Convention.

10. The first applicant finally complains of aggravated violations of his and his family's rights under Articles 2, 3, 5, 6, 8 and 13 of the Convention and under Article 1 of Protocol 1, as these violations form a part of State practice in south-east Turkey.

PROCEDURE

Application no. 28293/95 was introduced with the European Commission of Human Rights on 3 March 1995 and registered on 23 August 1995. Application no. 29494/95 was introduced on 22 November 1995 and registered on 7 December 1995. Application no. 30219/96 was introduced on 5 October 1995 and registered on 15 February 1996.

On 16 January 1996, the Commission decided to communicate the Application no. 28293/95 to the respondent Government. On 3 December 1996, the Commission decided to communicate Application no. 29494/95 to the respondent Government and to join the applications Nos. 28293/95 and 29494/95. On 20 May 1997, the Commission decided to communicate Application no. 30219/96 to the respondent Government.

The Government's written observations on Application no. 28293/95 were submitted on 16 September 1996, after three extensions of the time-limit fixed for that purpose. The applicants replied on 7 November 1996.

The Government's written observations on Application no. 29494/95 were submitted on 18 April 1997, after one extension of the time-limit fixed for that purpose. On 6 May 1997, the respondent Government submitted certain documents in support of their observations. The applicants replied on 11 June 1997.

The Government's written observations on Application no. 30219/96 were submitted on 24 November 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 13 January 1998. On 4 June 1998, the Government submitted certain documents in relation to Application no. 30219/96.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

By letters of 24 July and 6 August 1999 respectively, the applicants' representatives informed the Court that Mr Kâzım Genç had been assigned as the leading representative in the proceedings before the Court.

THE LAW

All applicants complain under Article 2 of the Convention of the disappearance and presumed killing of Müslüm Aydın. The first applicant, Kasım Aydın, also relies on Articles 3, 5, 13 of the Convention on this point.

All applicants complain under Article 1 of Protocol No. 1 of the destruction of their family home and possessions. The first applicant also relies on Articles 3, 5, 6, 8 and 13 of the Convention in respect of these facts.

The first applicant further alleges violations of Articles 14 and 18 of the Convention.

1. As a preliminary point, the Government submit that Kasım Aydın, who is an applicant in both Application no. 28293/95 and No. 30219/96, has authorised Professor Boyle and Professor Hampson to represent him in Application no. 28293/95 and Mr Kâzım Genç to represent him in Application no. 30219/96. The Government indicates that this casts doubt on the authenticity of Application no. 30219/96.

The first applicant, Kasım Aydın, submits that there are no legal objections under Turkish law to authorising different lawyers to represent him.

The Court notes that the representation of applicants by others is covered by Rule 36 of the Rules of Court. Rule 36 contains no provision to the effect that an applicant may only be represented by one person at a time. The Court, therefore, accepts that the first applicant is represented by more than one person in the different proceedings he has introduced before the Court.

However, in order to prevent any misunderstandings as to submissions made by an applicant, the Court considers it preferable that an applicant in such a situation indicates which of the representatives shall act as the leading representative as regards the applicant's submissions to the Court. In the instant case, Mr Kâzım Genç has been appointed as such. The Court further cannot find that representation of an applicant by more than one person is, as such, sufficient to cast doubt on the authenticity of an application or that there are reasons in the present case to doubt the authenticity of the applications filed by Kasım Aydin.

2. Article 34 of the Convention

The Government submit that it is doubtful that the first applicant, Kasım Aydın, can still claim to be a victim within the meaning of Article 34 of the Convention as regards his material losses. The Government point out that, in reply to repeated requests, the first applicant has been provided with financial aid in an amount of TRL 11,581,000 in order to meet his needs. Furthermore, following an examination of his request of 27 March 1996 for compensation for loss of livestock and beehives resulting from terrorist acts, it was found that it would be appropriate to grant him aid. On this basis and under Article 22 of the Anti-Terror Law nr. 3713, a request for aid in an amount of TRL 2.265.000.000 was submitted to the Social Help and Solidarity Fund.

The first applicant submits that the ex gratia financial aid he has received has no connection with the disappearance of his father and, therefore, cannot form a basis of a finding that he can no longer claim to be a victim within the meaning of Article 34 of the Convention. Moreover, as the financial aid awarded does not constitute an answer to his complaints under the Convention in respect of the alleged destruction of his family home and possessions, this aid cannot be regarded as an adequate redress or an effective remedy for the violation of his rights under the Convention.

The Court considers that the notion of “victim” within the meaning of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41 of the Convention. Consequently, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as “victim”, unless the national authorities have acknowledged, either expressly or in substance and have afforded redress for, the breach of the Convention (cf. Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36).

Since it does not appear that the financial aid, which has in fact been paid to the first applicant, was based on an acknowledgement, either expressly or in substance, that the first applicant's rights under the Convention have been disrespected by the authorities, the Court is of the opinion that the financial aid at issue cannot be regarded as sufficient for a deprivation of the first applicant's status as a “victim” in respect of his material losses.

The Court, therefore, accepts that the first applicant can claim to be a victim within the meaning of Article 34 of the Convention.

3. Article 35 § 1 of the Convention

As regards Application no. 28293/95

The Government submit that the first applicant, Kasım Aydın, has failed to exhaust domestic remedies and that there are no grounds in the present case to consider the first applicant exempt from the obligation to exhaust domestic remedies under Turkish law. In relation to both the disappearance of Müslüm Aydın and the destruction of the applicant's family home and possessions, the first applicant availed himself of the possibility to file criminal complaints. In the Government's opinion, criminal proceedings are however not necessarily adequate in all cases, in particular where it concerns acts committed by unknown perpetrators in the context of the struggle against terrorism.

The Government submit that there are two other effective remedies available under Turkish law, as indicated by the case-law of the Supreme Court and the Council of State in order to obtain compensation of damages incurred and of which the first applicant should have availed himself. In this respect, the Government refer to the administrative law remedy under Article 125 of the Turkish Constitution, Article 8 of the Decree no. 430 and to the possibility to take civil proceedings. Referring to certain examples of administrative court decisions in which petitioners have been granted compensation for the damages caused by the acts of State agents, the Government submit that these two remedies would have been appropriate and effective in the first applicant's situation.

The first applicant refutes the Government's argument that criminal proceedings are an inappropriate remedy for his complaints under the Convention. These complaints concern the destruction by the security forces of his family home and possessions as well as the disappearance of his father at the hands of these forces, which constitute serious criminal offences under Turkish law. To suggest that these complaints would be better addressed by non-criminal procedures fails to address their very nature. Moreover, to suggest that criminal remedies are either not appropriate or unlikely to function where criminal complaints are brought against members of the security forces amounts to an acknowledgement of de facto impunity given to security forces in south-east Turkey. The applicant emphasises that he is not complaining about an act of terrorism carried out by terrorist groups such as the PKK, but of deliberate acts of the security forces.

As regards the administrative remedy suggested by the Government, the first applicant refers to the Court's findings in the similar case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports 1996-IV, p. 1212, § 72). The first applicant further argues that it is wholly unacceptable that a remedy which would grant only monetary compensation and which would ignore the responsibility of the security forces for the acts at issue could be seen as an appropriate remedy given the serious nature of the complaints. To hold otherwise would be to allow a State to pay for the right to destroy civilian property or commit other crimes.

As to the civil remedy suggested by the Government, the first applicant submits that, although civil courts are not bound by the findings of criminal courts, civil courts still need to be satisfied of the findings of fact and therefore an investigation is required. Without an investigation in order to establish findings of facts, the seeking of compensation under civil law is futile. Given the decisions of the District Administrative Council taken in the present case, it is clear that no such investigation will take place. Finally, a remedy simply involving compensation cannot be regarded as adequate given the serious nature of the present complaints.

The Court considers that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (cf. Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2431, § 71).

The Court has examined the administrative and civil remedies referred to by the Government in a number of other previous cases concerning events in south-east Turkey and in which similar allegations as those in the present case were made. In these previous cases it was found that, in situations of that kind, these remedies cannot be regarded as effective for the purposes of Article 35 § 1 of the Convention and that, consequently, the applicants in those cases were not required to exhaust these remedies (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, pp. 1212-1213, §§ 71-75; Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2702, §§ 59-60; Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, pp. 907-908, §§ 66-71; Yaşa v. Turkey judgment, loc. cit., pp. 2431-2432, §§ 72-75; Tanrıkulu v. Turkey judgment of 8 July 1999, §§ 77-80; and Çakıcı v. Turkey judgment of 8 July 1999, § 80).

The Court has found no reason to adopt a different position in the present case and therefore accepts that the first applicant was not required under Article 35 § 1 of the Convention to avail himself of the civil and administrative remedies suggested by the Government.

As regard Applications nos. 29494/95 and 30219/96

The Government submit in the first place that these applications have been submitted out of time in that the alleged events complained of all occurred at the beginning of October 1994 whereas both applications were introduced more than six months later, namely on 5 October 1995 and 22 November 1995 respectively. The Government argue that, as the applicants in these two cases consider that there are no effective domestic remedies available in respect of their complaints under the Convention, they should have submitted their complaints within six months after the date on which the alleged events took place.

The Government submit in the second place that, as these applicants have nevertheless chosen to avail themselves of one of the remedies provided for in the Turkish legal system by filing a criminal complaint on 25 July 1995, they have not complied with the requirement of exhaustion of domestic remedies as the resulting investigation of the disappearance of Müslüm Aydın is currently still ongoing. The Government further submit that the applicants failed to avail themselves of the administrative and civil remedies which exist under Turkish law.

The applicants submit that their applications Nos. 29494/95 and 30219/96 were introduced within six months from the moment when they had first become aware that domestic remedies were not effective and once they had heard rumours that Müslüm Aydın had been killed by the security forces.

The Court considers that where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six months' time-limit contained in Article 35 § 1 of the Convention in principle starts to run from the date on which the act complained of took place or the date on which an applicant was directly affected by, became aware or could have become aware of such an act.

However, special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six months period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (cf. No. 27602/95, Dec. 8.6.99, unpublished; and Eur. Comm. HR, No 23654/94, Dec. 15.5.95, D.R. 81, p. 76).

In the instant case, the Court notes that the first applicant, Kasım Aydın, who is the oldest son and brother of the other applicants, filed two subsequent criminal complaints about the disappearance of Müslüm Aydın and the destruction of the applicants' family house and possessions with the Hozat public prosecutor, namely on 14 October 1994 and on 21 October 1994. After the transmission of the case-file nr. 1994/232 relating to the complaint of the destruction by security forces of the applicants' family home and possessions from the Hozat public prosecutor to the Hozat District Administrative Council, the first applicant was informed on 26 April 1995 that, failing an accurate identification of the perpetrators, it was not possible for the Hozat District Administrative Council to take criminal proceedings in relation to these facts. On 24 October 1995, after the transmission of the case-file nr. 1995/10 on the complaint of the disappearance of Müslüm Aydın to the Hozat District Administrative Council, Kasım Aydın was informed that, for the same reason, the Hozat District Administrative Council could not take criminal proceedings in respect of those facts.

The Court accepts that Kasım Aydın's mother and siblings did not file any separate criminal complaint, but apparently chose to await the outcome of the two criminal complaints filed by Kasım Aydın. The Court is therefore of the opinion that the six months' period referred to in Article 35 § 1 of the Convention must be considered as having started when it became clear what the outcome of these complaints was, namely on which date Kasım Aydın was informed of the position adopted by the Hozat District Administrative Council, i.e. as to the destruction of the Aydın family home and possessions on 26 April 1995 and as regards the disappearance of the Müslüm Aydın on 24 October 1995.

The Court notes that the Application no. 29494/95, which solely concerns a complaint in relation to the disappearance of Müslüm Aydın, was introduced on 22 November 1995. Application no. 30219/96, which concerns complaints in relation to the destruction of the applicants' home and possessions as well as the disappearance of Müslüm Aydın, was introduced on 5 October 1995. In these circumstances, the Court considers that neither application can be rejected for having been lodged out of time.

Insofar as the Government argue that the applicants have not exhausted domestic remedies in that they have failed to avail themselves of the administrative and civil remedies provided for in the Turkish legal system, the Court refers to its above findings in respect of these remedies in relation to Application no. 28293/95 and, consequently, considers that the applications Nos. 29494/95 and 30219/96 cannot be rejected on this ground.

As regards the Government's alternative argument that the applicants have failed to exhaust domestic remedies in that the investigation into the disappearance of Müslüm Aydın in response to the applicants' criminal complaint of 25 July 1995 is still ongoing, the Court, bearing in mind the Government's observations in Application no. 28293/95 that criminal proceedings may not constitute an adequate and effective remedy in all cases, is of the opinion that this question is a matter to be considered in its examination of the merits of the case.

4. As regards the substance of the applicants' complaints

The alleged disappearance of Müslüm Aydın

All applicants complain under Article 2 of the Convention of the disappearance and presumed killing of Müslüm Aydın. The first applicant, Kasım Aydın, also relies on Articles 3, 5 and Article 13 of the Convention on this point. He further argues that these violations are to be considered as aggravated violations in that they result from a State practice in south-east Turkey.

 

 Article 2 of the Convention provides as follows:

“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5 of the Convention provides as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Article 13 of the Convention reads:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argue that the applicants' allegation that State agents are responsible for the disappearance and possible killing of Müslüm Aydın has remained fully unsubstantiated. Although eye-witnesses have seen Müslüm Aydın in the company of soldiers, none of them made any statement to the effect that Müslüm Aydın was forcibly taken away by these soldiers. Insofar as it is alleged that Müslüm Aydın was killed by the security forces, the Government submit that there is no evidence whatsoever in support of this assertion. Moreover, the judicial proceedings instituted by the first applicant in order to obtain a judicial declaration that his father should be legally presumed dead are currently still pending and also the investigation into the disappearance of Müslüm Aydın is still ongoing.

The applicants submit that the Government dispute neither the fact that Müslüm Aydın has disappeared nor that military operations were conducted in the region at the relevant time. The only dispute between the Government and the applicants concerns the question whether the security forces are responsible for the disappearance of Müslüm Aydın. On this point, the applicants submit that Müslüm Aydın was last seen in the hands of the security forces and that since then nothing has been heard of him. Given this evidence and in the absence of any convincing rebutting evidence from the side of the Government, the applicants argue that their account should be accepted as truthful. In view of the dispute about the security forces' responsibility for the disappearance of Müslüm Aydın, the applicants further submit that, at the very least, it appears that there has been no meaningful domestic investigation into the disappearance of Müslüm Aydın.

As regards the applicants' complaints in relation to the disappearance of Müslüm Aydın, the Court 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 Court concludes, therefore, that this part of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

The alleged destruction of the Aydın family home and possessions

All applicants further complain under Article 1 of Protocol No. 1 of the destruction of their family home and possessions. The first applicant also relies on Articles 3, 5, 6, 8 and 13 of the Convention in respect of these facts. He also complains under Article 14 of the Convention in conjunction with Articles 3, 5, 6, 8 and 13 of the Convention and with Article 1 of Protocol No. 1 that he and his family are subjected on discriminatory treatment. He further submits that these violations are to be considered as aggravated violations in that they result from a State practice in south-east Turkey.

The first applicant also complains that the policy pursued by the Turkish authorities, in allowing the military to have a free hand to suppress the problems in South East Turkey by methods which include the evacuation and destruction of villages in the South East Turkey, constitutes a violation of Article 18 of the Convention.

Article 1 of Protocol No. 1 to the Convention, insofar as relevant, provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law....”

Article 6 of the Convention, insofar as relevant, reads as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

Article 8 of the Convention reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 18 of the Convention provides:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

a. The Government submit in the first place that the complainants in Application no. 30219/96 have not invoked Article 1 of Protocol No. 1, but solely rely on Article 2 of the Convention.

The applicants in Application no. 30219/96 submit that their complaints under the Convention does include a complaint about a violation of their property rights, which is a right guaranteed by Article 1 of Protocol No. 1 to the Convention. Although this provision of the Convention has not been cited explicitly, they submit that the alleged violation of this right has been explained in detail in the application form.

The Court notes that the applicants' submissions in Application no. 30219/96 included an account that their family home and possessions were destroyed by the security forces. Although it cannot be excluded that an omission to indicate explicitly the relevant provision of the Convention allegedly violated might create confusion as to the exact right invoked by applicants, the Court accepts that in the present case it was sufficiently clear that, although Article 1 of Protocol No. 1 was not mentioned explicitly in their initial submissions, the applicants did complain of a violation of the right to protection of property as guaranteed by Article 1 of Protocol No. 1.

b. The Government submit that, insofar as the facts complained of fall within the scope of the provisions invoked by the first applicant, these complaints are wholly unfounded. They further submit that, even despite the fact that the authorities bear no responsibility for the applicants' losses, the authorities have, on humanitarian grounds and without awaiting the  
outcome of any investigation whatsoever, ex gratia provided the first applicant with financial relief and continue to do so as is shown by their request to the Social Help and Solidarity Fund to award the first applicant an important financial compensation for damages incurred by him and his family.

The applicants submit that the Government dispute neither the fact that their family home and possession have been destroyed nor that military operations were conducted in the region at the relevant time. The only dispute between the Government and the applicants concerns the question whether the security forces are responsible for this. In the light of the evidence available to the effect that the security forces were present in the area at the material time and in the absence of any convincing rebutting evidence from the side of the Government, the applicants argue that their account should be accepted as truthful. Given the dispute about the security forces' responsibility for the destruction of the applicants' family home and possessions, the applicants further submit that, at the very least, it appears that there has been no meaningful domestic investigation of this matter.

As to the applicants' complaints of the destruction of the family home and possessions, the Court 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 Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECIDES TO JOIN APPLICATION NO. 30219/96 TO THE JOINED APPLICATIONS NOS. 28293/95 AND 29494/95;

JOINS TO THE MERITS THE QUESTION OF THE EFFECTIVENESS OF THE CRIMINAL INVESTIGATION FOLLOWING THE APPLICANTS' CRIMINAL COMPLAINT OF 25 JULY 1995;

DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the merits of the cases.

Michael O'Boyle Elisabeth Palm 
 Registrar President

 

APPENDIX

LIST OF THE APPLICANTS

Application no. 28293/95 :

1.  Kasım AYDIN, born in 1965 and son of Müslüm Aydın

Application no. 29494/95 :

2.  Cemal AYDIN, born in 1973 and son of Müslüm Aydın

Application no. 30219/96:

3.  Sultan AYDIN, born 1944 and wife of Müslüm Aydın

4.  Arife AYDIN, born in 1962 and daughter of Müslüm Aydın

5.  Kasım AYDIN, born in 1965 and son of Müslüm Aydın

6.  Nuriye AYDIN, born in 1967 and daughter of Müslüm Aydın

7.  Kemal AYDIN, born in 1973 and son of Müslüm Aydın

8.  Ali Aziz AYDIN, born in 1971 and son of Müslüm Aydın

9.  Yıldız AYDIN, born in 1970 and daughter of Müslüm Aydın

10. Songül AYDIN, born in 1977 and daughter of Müslüm Aydın

11. Gülbahar AYDIN, born in 1979 and daughter of Müslüm Aydın

12. Eser AYDIN, born in 1981 and daughter of Müslüm Aydın

13. Şirin ERENLER-AYDIN, born in 1963 and daughter of Müslüm Aydın

28293/95, 29494/95 & 30219/96 - -


- - 28293/95, 29494/95 & 30219/96