Information Note on the Court’s case-law No. 82
January 2006
İçyer v. Turkey (dec.) - 18888/02
Decision 12.1.2006 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Adoption of a Compensation Law to redress the problem of internally displaced persons who had been denied access to their possessions in their villages (as a result of terrorist acts or measures taken by the authorities to combat terrorism): inadmissible
The applicant, who lived in a village in south-east Turkey, claims to have been forcibly evicted from his village by the security forces in October 1994 on account of the disturbances in the region. All his property was destroyed and he and his family moved to Istanbul. He lodged a petition with the Prosecutor’s Office in December 1994. The file was transferred to the Administrative Council, body from which he received a response the following year stating that there would be no investigation into his allegations as the perpetrators of the alleged acts could not be identified. In 2001 the applicant filed a petition with the Governor’s office in his region requesting permission to return to his village. The Government disputes this version of the facts and claims that the applicant (and his co-villagers) had evacuated their village on account of intense terrorist activities in the region and threats by the PKK. In July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed, which the Government claims is a sufficient remedy capable of redressing the Convention grievances of persons who have been denied access to their possessions in their villages.
Inadmissible under Articles 8, 13, and Article 1 of Protocol No. 1 – It was not disputed that there was currently no obstacle preventing the applicant from returning to his village. Moreover, under the new Law the applicant was entitled to claim compensation for damage. The Law foresaw that a claimant had to prove damage by means of any information or document. After determining the damage, a compensation commission would prepare a friendly-settlement declaration and would make an offer to the claimant. As regards the effectiveness of this remedy, compensation commissions were now operational in 76 provinces and there were already around 170,000 making use of this remedy, which proved that it was not only available in theory but also in practice. As to the applicant’s claim of the lack of adversarial proceedings before the compensation commissions, these bodies did not assume the task of a “tribunal” and did not therefore need to provide adversarial proceedings. They merely served to determine the damage sustained by individuals and to make a friendly-settlement offer either in kind or in cash. Compensation could be obtained not only for damage to property but also for a wide range of economic activities. As regards non-pecuniary damage, the Law opened an avenue to the possibility of seeking such damages in the administrative courts. The Court’s approach in this case had been similar to that in Broniowski v. Poland: after having identified the problem of internally displaced persons as a structural problem in Turkey, measures to be taken to put an end to this problem were indicated to the authorities. With the adoption of the Compensation Law of 27 July 2004, the Government could be deemed to have fulfilled their duty to review the systemic situation at issue and to introduce an effective remedy. Hence, the applicant should be required by Article 35(1) to lodge an application with the relevant compensation commission under the new Law to claim compensation for the damage sustained as a result of his inability to gain access to his possessions: non-exhaustion.
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This summary by the Registry does not bind the Court.
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