THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 34523/03, 34537/03 and 34544/03
by Kemal DURGUN 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 on 3 April 2001, 6 December 2000 and 7 December 2000 respectively,
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 Ali Cemal Zülfikar, a lawyer practising in Elazığ.
A. The circumstances of the cases
The facts of the case, as submitted by the applicants, may be summarised as follows.
Application no. 34523/03
by Kemal Durgun, Kazım Demirkılıç, Polat Ferhat and Mevlit Ceviz
Until 1994 the applicants lived in Bilekli village, in the Hozat district in Tunceli province, where they own property. It is to be noted that the title deeds to the property that Polat Ferhat, Mevlit Ceviz and Kemal Durgun used in Bilekli bear their mothers’ and fathers’ names.
In October 1994 security forces forcibly evacuated Bilekli on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On 20 October 1994 Kemal Durgun’s father filed a petition with the District Governor’s office in Hozat and requested redress for the damage he suffered and sought permission to return to their village.
On 1 December 1994 Kemal Durgun’s father filed a petition with the Prime Minister’s office requesting provided with government aid and asking the authorities to expropriate his property.
On 14 January 1995 Kazım Demirkılıç filed a petition with the Ministry of Public Works and Settlement requesting permission to return to his village and compensation for the damage he suffered.
On 20 January 1995 the Governor’s office in Tunceli sent a letter to Kemal Durgun’s father and informed him about the aid supplied by the District Governor’s office in Hozat. They further noted that there was no legal ground for expropriation of property.
On 11 November 2000 Kemal Durgun filed a petition with the District Governor’s office in Hozat requesting redress for the damage he suffered and seeking permission to return to his village.
On 11 and 20 November 2000 the applicants lodged petitions with the Public Prosecutor’s office in Hozat complaining about the burning down of their house by security forces.
On 13 February 2001 the Public Prosecutor sent a letter to the applicants stating that he had issued a decision of non-jurisdiction and had sent the case- files to the Administrative Council in Hozat. The Public Prosecutor further noted that the latter authority had decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified.
Application no. 34537/03
by Cemal Toprak, Kamber Çelik, Veli Çelik and Cafer Toprak
Until 1994 the applicants lived in Halitpınar village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Kamber and Veli Çelik did not submit any certificate to the Court attesting their ownership of the property in Halitpınar.
In October 1994 security forces forcibly evacuated Halitpınar on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their house by security forces.
On 9 December 1994 the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık.
On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified.
On 16 August 1995 and on 2 February 1999 the headman of Halitpınar village, Süleyman Toprak, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Halitpınar village and asked the aforementioned authorities to allow the residents to return to their village.
He further requested compensation for the damage they suffered. He received no response.
On 18 February 1998 Cafer Toprak filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.
On 25 June 1998 the District Governor’s office in Ovacık sent the following reply to him:
“... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved.
Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...”
On an unspecified date Cemal Toprak, Kamber Çelik and Veli Çelik filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village.
On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.”
Application no. 34544/03
by Fedi Gülerdoğan, Güllü Gülerdoğan and Hıdır Gülerdoğan
Until 1994 the applicants lived in Karaoğlan village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Ms. Güllü Gülerdoğan did not submit any certificate to the Court attesting her ownership of the property in Karaoğlan.
In October 1994 security forces forcibly evacuated Karaoğlan on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live.
On 27 July 1995 and on 4 August 1995 Hıdır Gülerdoğan filed petitions with the District Agriculture Directorate (İlçe Tarım Müdürlüğü) in Ovacık and the Governor’s office in Tunceli and requested loan for livestock.
On 11 September 1995 Güllü Gülerdoğan and Hıdır Gülerdoğan filed petitions with the Governor’s office in Tunceli requesting permission to return to their village.
On 11 October 1995 the Governor’s office in Tunceli sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been considered by the District Governor’s office. You will be informed about the developments by the headman (muhtar) of the village.”
On 18 February 1998 Hıdır Gülerdoğan filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.
On the same day the District Governor’s office in Ovacık sent the following reply to the applicant:
“... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved.
Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...”
On 16 August 1998 and on 2 February 1999 the headman of Karaoğlan village, Düzgün Yıldız, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Karaoğlan and requested the aforementioned authorities to allow the residents to return to their village.
He further requested compensation for the damage they suffered. He received no response.
On an unspecified date the applicants filed petitions with District Governor’s office in Ovacık requesting permission to return to their village.
On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.”
On 20 August 2004 the representative of the applicants informed the Court that Mr Fedi Gülerdoğan had died and his heirs, Fındık Gülerdoğan, Cafer Gülerdoğan, Sevgi Canpolat and Serdar Güneş wish to pursue the application.
2. The Government’s version of the facts
The investigation carried out by the authorities indicated that the applicants had left their villages of 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 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
The applicants complained that the destruction of their property amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.
The applicants contended under Article 5 of the Convention that they had been deprived of their liberty and security due to the conduct of the security forces.
The applicants submitted under Article 6 that they had been denied the right to have access to a court in order to request compensation for the destruction of their property and for return to their village.
The applicants asserted under Article 8 of the Convention that their right to respect for their family life and home was violated, since they had been forcibly displaced from their villages and had been denied access to their property.
The applicants submitted under Article 13 that they had had no effective remedy for their various Convention grievances.
The applicants maintained under Article 14, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 that they were discriminated against on the basis of their ethnic origin.
The applicants alleged under Article 1 of the Protocol No. 1 that their right to peaceful enjoyment of their property was violated as the security forces had destroyed their houses and had forced them to leave their village.
THE LAW
A. Complaints under Articles 3 and 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 Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 3 of the Convention
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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 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. Complaints under Articles 5, 6 and 14 of the Convention
The applicants alleged that their rights guaranteed by Articles 3, 5, 6 and 14 of the Convention 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 complaints.
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 Articles 3, 5, 6 and 14 of the Convention is necessary.
It follows that these complaints 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
1.34523/03Kemal Durgun, Kazım Demirkılıç, Polat Ferhat,
Mevlit Ceviz
2.34537/03Cemal Toprak, Kamber Çelik, Veli Çelik,
Cafer Toprak
3.34544/03Fındık Gülerdoğan, Cafer Gülerdoğan,
Sevgi Canpolat, Serdar Güneş, Güllü Gülerdoğan,
Hıdır Gülerdoğan
Full & Egal Universal Law Academy