THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25598/02
by Ağa HAKAN 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 application lodged on 4 February 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case 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, Mr Ağa Hakan, Mr Abdulkerim Hakan, Mr Abdullah Hakan and Mr Abdulhekim Hakan, are Turkish nationals. They are represented before the Court by Mr Bekir Kaya, a lawyer practising in İstanbul.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until 1997 the applicants lived in Yanıkçay, a village of the Gevaş district in Van. It is to be noted that the applicants did not submit any certificate attesting their ownership of property in Yanıkçay.
On 10 October 1997 the applicants left their village due to pressure from the security forces.
On 13 December 1997 the security forces set fire to the houses and livestock of the applicants. Two inhabitants of Yanıkçay, Mr Muzaffer Şeker and Mr Mustafa Ülger witnessed the incident.
On an unknown date, approximately twenty villagers from Yanıkçay were required to go to the District Gendarmerie Command in Gevaş. They were then compelled to sign statements that the houses had been burned by members of the PKK (Kurdish Workers’ Party).
On 16 December 1997 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed a petition with the Public Prosecutor’s office in Gevaş, complaining about the destruction of their property and requestiong redress for the damages they had suffered.
On 17 March 1998 the Gevaş Public Prosecutor issued a permenant search warrant to find the perpetrators of the burning down of the applicants’ property.
On 15 October 2001 the District Gendarmerie Command in Gevaş informed the Public Prosecutor’s office in Gevaş that the perpetrators of the offence had been neither identified nor captured.
On 25 October 2001 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed further petitions with the Public Prosecutor’s office in Gevaş and the Governor’s office in Van reiterating their demand for redress for the damage they had suffered.
On 26 October 2001 the Public Prosecutor’s office in Gevaş sent the permanent search warrant and the Gevaş District Gendarmerie Command’s letter of 15 October 2001 to the applicants.
2.The Government’s version of the facts
The investigation carried out by the authorities indicated that the applicants had left their village of their own will. Statements taken from the applicants’ fellow villagers established that the security forces had not forced the applicants to leave their village. The applicants had left their village, taking their all belongings with them, two months before the burning of their houses. In their petitions filed with the Gevaş Public Prosecutor’s office and in their statements to the Public Prosecutor, the applicants never claimed that they had been forcibly evicted by the security forces.
Two eye-witnesses to the burning of the applicants’ houses stated that they had not seen anybody suspicious who could have perpetrated the burning down of the applicants’ abandoned houses. However, a former PKK militant A.U. stated that the houses had been burned by the PKK for revenge from the inhabitants of the Yanıkçay village.
Currently 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, 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.
They submitted under Article 6 of the Convention that they had not been granted the right of access to a court to request redress for the damages they had suffered.
They alleged under Article 8 of the Convention that their right to respect for their family life and home had been violated since they were unable to return to their village.
The applicants complained under Article 13 of the Convention that there were no effective remedies in domestic law in respect of their Convention grievances.
They 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 applicants alleged under Article 14 of the Convention, in conjunction with the above-mentioned articles, that they had discriminated against on the basis of their ethnic origins.
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, 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 Articles 6 and 14 of the Convention
The applicants further complained that their rights guaranteed under Articles 6 and 14 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
Declares the application inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy