Information Note on the Court’s case-law No.
May 1998
Gundem v. Turkey - 22275/93
Judgment 25.5.1998
Article 13
Effective remedy
Alleged destruction of house and possessions by security forces and village guards and lack of remedies in south-east Turkey: no 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.GOVERNMENT’S PRELIMINARY OBJECTIONS
A.Invalidity or, alternatively, withdrawal or discontinuation of application
Nothing had prevented Government from raising at the admissibility stage of Commission proceedings their doubts as to authenticity of applicant's application and certain documents – at the subsequent stage during hearing before Commission delegates the Government only challenged the authenticity of one document but not that of the initial application – nor did they at that stage suggest that it could be inferred from applicant’s absence at the hearing that he wished to withdraw or discontinue the proceedings.
Conclusion: estoppel (unanimously).
B.Non-exhaustion of domestic remedies
Central question was whether applicant had demonstrated existence of special circumstances dispensing him from obligation under Article 26 to exhaust domestic remedies.
Court had regard to security situation in south-east Turkey at the time of the applicant’s complaint and to the ensuing obstacles to the proper functioning of the system of the administration of justice in that region – despite the extent of the problem of village destruction, no example of compensation being awarded in respect of allegations that property has been purposely destroyed by members of the security forces or of prosecutions having been brought against them – general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred – on the other hand, applicant had not himself raised his Convention grievances before a domestic authority before complaining to Strasbourg – Court attached particular significance to the manner in which authorities conducted their investigation into applicant’s allegations, following communication of his application by Commission to respondent Government.
In this regard Court noted that, despite seriousness of applicant’s complaints, the investigations carried out by prosecution authorities were not only protracted but also of limited nature – on the other hand, Government had sought to demonstrate that authorities had made sustained efforts to find applicant in order to be able to take evidence from him – facts of case did not disclose any shortcomings on their part in this respect – nor did they seem to exclude that protracted and limited character of investigations to some extent caused by applicant’s failure to cooperate with authorities – furthermore, during investigations, village mayor and four villagers from applicant’s neighbourhood had been interviewed, all of whom had denied that alleged events had taken place – it was questionable whether it could be said that there existed such special circumstances as could dispense applicant at the time of the events complained of from obligation to exhaust domestic remedies – however, Government’s preliminary objection raised issues which were closely linked to those raised by applicant under Article 13.
Conclusion: objection joined to the merits (fourteen votes to six).
II.MERITS OF THE APPLICANTS’ COMPLAINTS
A.Articles 3, 5 § 1, 8 and 18 of the Convention and Article 1 of Protocol No. 1
Recalling that under its case-law the establishment and verification of the facts are primarily a matter for the Commission, Court saw no reason to depart from Commission's findings that it had not been established beyond reasonable doubt that the events as alleged by the applicant had occurred.
Conclusion: no violation (unanimously).
B.Articles 6 § 1 and 13 of the Convention
Since applicant did not attempt to make an application before the courts, not possible to determine whether Turkish courts would have been able to adjudicate on his claims had he initiated proceedings – in any event, applicant complained essentially of lack of a proper investigation – therefore appropriate to examine this complaint in relation to general obligation under Article 13.
Conclusion: not necessary to consider complaint under Article 6 § 1 (unanimously).
Article 13 applied only in respect of Convention grievances which were arguable – whether that was so in this case had to be decided in light of particular facts and nature of legal issues raised.
Court reiterated Commission’s findings that it was only the oral testimony of applicant’s father which provided support for applicant’s account of specific events – testimony had been rather unclear and had differed from applicant’s own account as to the reasons for the alleged damage to his house and property – several witnesses had denied that any houses in the neighbourhood had been destroyed by security forces and village guards – a number of witnesses had agreed that some houses belonging to applicant’s family had burned down following a clash several months after the alleged events, but none had suggested that this was the result of deliberate action by security forces or village guards – furthermore, applicant had failed to appear before the Commission’s delegates – Commission felt concern about his explanation that he feared adverse consequences but was unable to determine whether or to what extent such fear might have been justified – whatever the reason for applicant’s absence, it had made it difficult to establish the facts.
Court considered that the evidence gave rise to serious doubts as to whether applicant had made out a factual basis for his allegation that his house and property had been purposely destroyed by the security forces – in the circumstances of the case, including the absence of an opportunity for the Commission to test directly with him his written statements, Court not satisfied that he had an arguable claim that the Convention had been violated.
Conclusion: no violation and not necessary to pursue examination of preliminary objection concerning exhaustion of domestic remedies (thirteen votes to seven).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy