THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 14653/02, 14657/02, 14658/02, 14662/02, 14667/02, 14669/02, 14670/02, 14673/02, 14675/02, 14678/02, 14684/02, 14688/02, 14692/02, 14693/02, 14695/02, 14702/02, 14716/02, 14723/02, 14727/02, 14731/02, 14737/02, 14741/02, 14746/02, 14747/02 and 14750/02
by Hanifi DERE 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 2002,
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 Mahmut Vefa, a lawyer practising in Diyarbakır.
A. The circumstances of the cases
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until 1994 the applicants all lived in Yorulmaz village, in the district of Lice in Diyarbakır province, where they own property. It is to be noted that Hanifi Dere, Talat Dere and Hasan Kızıl did not submit any certificate to the Court attesting their ownership of the property in Yorulmaz.
In May 1994 security forces forcibly evacuated Yorulmaz on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live.
On unspecified dates, the applicants petitioned the offices of the Governor of the state-of-emergency region, the Diyarbakır Governor, the Lice District Governor, the Silvan District Governor and military authorities in the region and requested them to provide compensation for the damage they had suffered and to issue permission for return to their village. It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
On 16 May 1997 the mayor of Yorulmaz, Mr Kazım Yalçıner, filed a petition with the office of the Governor of the state-of-emergency region and asked the latter authority to allow the residents of the village to cultivate their lands for five months.
On 30 May 1997 the Diyarbakır Provincial Gendarmerie Commander sent a letter in reply to the mayor and refused his request. This letter was served on the mayor on 16 June 1997.
On 9 September 2001 the District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The letter further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. Yorulmaz was not listed among the villages to which access would be allowed under aforementioned conditions.
On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course of the operations.
On unspecified dates, the applicants filed petitions with the offices of the Diyarbakır Governor, the Lice District Governor and the President of the Republic requesting compensation for the damage they had suffered and seeking permission to return to their village. However, they did not receive any response to their petitions. It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
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 had been forcibly evicted from their village by the security forces.
They contended under Article 8 of the Convention that their right to respect for their family life and home was violated on account of the destruction of their homes and the forced evacuation of their village.
They maintained under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions because of the destruction of their property and the denial of access to their village.
They submitted under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.
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 and destruction of property as well as 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 and destruction of property as well as 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. Complaint under Article 6 of the Convention
The applicants alleged that their rights guaranteed by Article 6 had been violated since they had forcibly evicted from the village by the security forces.
The Government did not address these issues beyond denying the factual basis of the substantive complaint.
In the light of its findings with regard to Article 8 of the Convention and Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 6 is necessary.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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
1) 14653/02Hanifi Dere
2) 14657/02Şevret Koç
3) 14658/02Sabri Dere
4) 14662/02Mustafa Dere
5) 14667/02Tahir Demir
6) 14669/02Talat Dere
7) 14670/02Ramazan Koç
8) 14673/02Ali Dere
9) 14675/02Hikmet Tabay
10) 14678/02Ali Koç
11) 14684/02Ahmet Koç
12) 14688/02Hasan Kızıl
13) 14692/02Mehmet Dere
14) 14693/02Salih Nayır
15) 14695/02Latif Lale
16) 14702/02Celal Dere
17) 14716/02Kazım Dere
18) 14723/02M.Salim Mutlu
19) 14727/02Abdullah Koç
20) 14731/02Sait Dere
21) 14737/02Mahmut Yuva
22) 14741/02Emine Dere
23) 14746/02Ahmet Yuva
24) 14747/02Mehmet Nayır
25) 14750/02M.Şerif Koç
Full & Egal Universal Law Academy