Information Note on the Court’s case-law No.
September 1996
Akdivar and Others v. Turkey - 21893/93
Judgment 16.9.1996 [GC]
Article 8
Article 8-1
Respect for home
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Peaceful enjoyment of possessions
Alleged burning of houses by security forces in South-East Turkey: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.STATUS OF HÜSEYİN AKDİVAR AND AHMET ÇIÇEK
Court finds, like the Commission, that Hüseyin Akdivar and Ahmet Çıçek cannot be considered to be applicants.
II.GOVERNMENT'S PRELIMINARY OBJECTIONS
A.Abuse of process
Commission has substantially upheld applicants' allegations concerning the destruction of their property.
Conclusion: objection dismissed (twenty votes to one).
B.Exhaustion of domestic remedies
Court recalls general principles concerning the exhaustion of domestic remedies – as regards application of Article 26, there may be obstacles to the proper functioning of the administration of justice in a situation of civil strife – difficulties in securing probative evidence for the purposes of domestic legal proceedings may make the pursuit of judicial remedies futile and administrative inquiries may be prevented from taking place.
Remedy before administrative courts: significant that Government has not been able to point to examples of compensation being awarded in respect of allegations that property has been purposely destroyed by members of the security forces or to prosecutions having been brought against them – general reluctance by the authorities to admit this type of illicit behaviour and lack of any impartial investigation or offer of assistance – remedy not adequate and sufficient since Court not satisfied that a determination can be made that property was destroyed by members of the gendarmerie.
Remedy before civil courts: prospects of success negligible in absence of any official inquiry into allegations, even if applicants could have secured services of lawyers – risk of reprisals against applicants or lawyers if legal proceedings had been brought alleging the responsibility of the security forces cannot be excluded – accordingly, applicants have demonstrated existence of special circumstances dispensing them from exhausting remedy – ruling confined to particular circumstances of case and not to be interpreted as general statement that remedies are ineffective in this area of Turkey.
Conclusion: objection dismissed (nineteen votes to two).
III.MERITS OF THE APPLICANTS' COMPLAINTS
A.Court's assessment of the facts
Court, in line with constant case-law, accepts facts as found by Commission – finds it established that security forces responsible for burning of applicants' houses on 10 November 1992.
B.Article 8 of the Convention and Article 1 of Protocol No. 1
No doubt that deliberate burning of houses and contents constitutes serious interference with rights under these provisions -Government confined response to denying involvement of security forces and offered no justification – thus violation of these provisions – evidence does not permit conclusion to be reached concerning allegation of administrative practice.
Conclusion: violation (nineteen votes to two).
C.Article 3 of the Convention
In view of absence of precise evidence concerning specific circumstances in which destruction took place and above finding of a violation, allegation not examined further.
Conclusion: complaint not examined further (twenty votes to one).
D.Article 5 of the Convention
Complaint not maintained in present proceedings and Court sees no reason to examine it of its own motion.
Conclusion: not necessary to examine this complaint (unanimously).
E.Articles 6 § 1 and 13 of the Convention
Complaints under this head reflect same or similar elements as those issues already dealt with in context of objection concerning exhaustion of domestic remedies.
Conclusion: not necessary to examine these further complaints (unanimously).
F.Articles 14 and 18 of the Convention
Court accepts Commission's findings that allegations were unsubstantiated.
Conclusion: no violation (unanimously).
G.Article 25 § 1 of the Convention
Court notes Commission's finding that certain applicants, or persons thought to be applicants, had been directly asked about applications and had been presented with statements to sign declaring that no applications had been brought – applicants must be able to communicate freely with Commission without being subjected to any form of pressure from authorities to withdraw or modify their complaints – given their vulnerable position, matters complained of amount to form of illicit and unacceptable pressure on applicants to withdraw application.
Conclusion: violation (seventeen votes to four).
IV.ARTICLE 50 OF THE CONVENTION
A.Costs and expenses: no comment offered by Government on applicants' claims which are awarded in full (nineteen votes to two).
B.Pecuniary and non-pecuniary damage: not ready for decision – question reserved (twenty votes to one).
Conclusion: respondent State to pay a specified sum to applicants.
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This summary by the Registry does not bind the Court.
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