THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 23500/02, 23502/02, 23503/02, 23504/02 and 23505/02
by Hasan ÇINTOSUN and Others
against Turkey
The European Court of Human Rights (Third Section), sitting on 30 March 2006 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrR. Türmen,
MrC. Bîrsan,
MrsA. Gyulumyan,
MrsR. Jaeger, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above applications lodged in 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Applications nos. 23500/02 and 23505/02
by Hasan Çintosun and Abdulhamit Çintosun
Until September 1993 the applicants lived in Kayabaş, a hamlet of the Dağcılar village, in the district of Silvan, in Diyarbakır.
In September 1993 security forces destroyed the applicants’ properties and forcibly evicted the applicants from their hamlet.
On 2 February 1996 Abdulhamit Çintosun lodged a petition with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of his property and permission to return to their village. He further requested that an investigation be initiated into the destruction of their properties.
On the same day his petition was received by this office.
The applicant received no response to his petition.
Application no. 23502/02
by İsmet Sönük, Maliha Esatoğlu, Sabiha Yabancı,
Kini Elmacı and Türkan Vuran
Until May 1994 the applicants lived in Alauşak, a village of the Silvan district, in Diyarbakır. It is to be noted that the documents attesting ownership of property, which Meliha Esatoğlu, Sabiha Yabancı, Türkan Vuran, Kini Elmacı used in Alauşak, bear the name of their brother, İsmet Sönük.
In May 1994 security forces destroyed the applicants’ property and forcibly evicted the applicants from their village.
On 17 January 1996 one of the applicants, İsmet Sönük lodged a petition with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village. He further requested that an investigation be initiated into the destruction of their properties.
On 22 January 1996 his petition was received by this office.
The applicant received no response to his petition.
Application nos. 23503/02 and 23504/02
by Hakkı Nergiz, Belkisa Nergiz, Nezife Nergiz, İhsan Nergiz,
Sakine Nergiz, Zinet Nergiz, Medeni Açık,
Mehdin Açık and Şahabettin Açık
Until May 1994 the applicants lived in Dolapdere, a village of the Silvan district, in Diyarbakır. It is to be noted that the documents attesting ownership of property, which Medeni Açık, Belkisa Nergiz, Nezife Nergiz, İhsan Nergiz, Sakine Nergiz and Zinet Nergiz used in Dolapdere, bear their fathers’ and brothers’ names.
In May 1994 security forces destroyed the applicants’ property and forcibly evicted the applicants from their village.
On 17 January 1996 and 18 January 1996 two of the applicants, Hakki Nergiz and Mehdin Açık lodged petitions with the Governor’s office in Diyarbakır requesting redress for the damages they had suffered due to the destruction of their properties and permission to return to their village. They further requested that an investigation be initiated into the destruction of their properties.
On 26 January 1996 their petitions were received by this office.
The applicants received no response to their petitions.
2.The Government’s version of the facts
The investigation carried out by the authorities indicated that the applicants had left their villages on their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
B. Relevant domestic law
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 8803‑8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).
COMPLAINTS
The applicants alleged violations of Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
They alleged that their rights guaranteed under Article 6 of the Convention were violated since they were forcibly evicted from their village by the security forces.
The applicants complained under Article 8 of the Convention that their right to respect for their family life and home was violated as they had been forcibly displaced from their villages and had been prevented from returning.
They alleged under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.
The applicants contended under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions since the security forces had destroyed their houses and they had not been allowed to return to their village.
THE LAW
A. Complaints under Article 8 of the Convention and Article 1 of Protocol No. 1
The applicants complained that their forcible displacement and destruction of their property as well as the refusal of the authorities to allow them to return to their homes and land had given rise to breaches of Article 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life [and] his home...
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 1 of Protocol No. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government raised an objection to the Court’s jurisdiction, arguing that the applicants had failed to exhaust domestic remedies as they had not availed themselves of the new remedy offered by the Compensation Law of 27 July 2004. In that connection they claimed that the mechanism which they had set up subsequent to the Doğan and Others judgment of 29 June 2004 was capable of providing redress in respect of the applicants’ complaints and offered a reasonable prospect of success.
The applicants disputed the Government’s submissions and alleged that the new remedy introduced by the compensation law could not be regarded as effective.
The Court observes that under the compensation law of 27 July 2004 it is open to persons, such as the applicants in the present case whose applications are pending before the Court, to lodge until 3 January 2007 an application with the compensations commissions in order to claim compensation for the damage they had sustained as a result of their displacement, destruction of property and inability to gain access to their possessions in their villages in south-east Turkey.
The Court has already examined that remedy and found it effective in respect of complaints about the alleged forced displacement and denial of access to possessions in the villages in south-east Turkey. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success (see İçyer, cited above, §§ 73-87).
In the light of the above, the Court considers that there are no exceptional circumstances capable of exempting the applicants from the obligation to exhaust domestic remedies.
It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 of the Convention
The applicants complained that there was no effective domestic remedy capable of providing redress for their Convention grievances. They relied on Article 13 of the Convention, which provides:
“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 disputed the above allegations, arguing that there were effective domestic remedies of which the applicants had failed to avail themselves.
The Court has already found that the Compensation Law does provide the applicants with an effective remedy in respect of their complaint concerning the alleged forced displacement, destruction of property and denial of access to their property. That finding is valid in the context of the complaint under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaints under Article 6 of the Convention
The applicants further complained that their right guaranteed under Article 6 of the Convention had been breached on account of the refusal of the authorities to allow them to gain access to their possessions.
The Government did not address these issues beyond denying the factual basis of the substantive complaints.
The Court notes that in its Doğan and Others v. Turkey pilot judgment (cited above, §§ 118-133) it has examined complaints similar to those raised by the applicants in the instant case and has found them unsubstantiated. It finds no particular circumstances in these cases which would require it to depart from its findings in the aforementioned case.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
A P P E N D I X
List of Applicants
Application no. 23500/02
Hasan Çintosun
Application no. 23502/02
İsmet SönükMaliha EsatoğluSabiha YabancıKini ElmacıTürkan Vuran
Application no. 23503/02
Hakkı NergizBelkisa NergizNezife Nergizİhsan NergizSakine NergizZinet Nergiz
Application no. 23504/02
Medeni AçıkMehdin AçıkŞahabettin Açık
Application no. 23505/02
Abdulhamit Çintosun
Full & Egal Universal Law Academy