Menteş and Others v. Turkey

Information Note on the Court’s case-law No.

November 1997

Menteş and Others v. Turkey - 23186/94

Judgment 28.11.1997 [GC]

Article 8

Article 8-1

Respect for family life

Respect for home

Respect for private life

Alleged burning of houses by security forces  in south-east Turkey: violation

Article 13

Effective remedy

Lack of remedies: 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 OBJECTION (NON-EXHAUSTION OF DOMESTIC REMEDIES)

Preliminary objection resolved in light of principles enunciated in the Akdivar and Others judgment and of the security situation in south-east Turkey and ensuing obstacles to proper functioning of system of administration of justice in that region – despite extent of problem of village destruction, no example of compensation being awarded in respect of allegations that property purposely destroyed by members of security forces or of prosecutions being brought against them – general reluctance of the authorities to admit that this type of practice had occurred – unlike Akdivar and Others, present applicants had not themselves approached any domestic authority with their Convention grievances – however, the competent public prosecutors had failed to carry out any meaningful investigation after becoming aware of their allegations – insecurity and vulnerability of the applicants’ position following destruction of their homes also borne in mind – in the exceptional circumstances, not shown that remedies before administrative and civil courts were adequate and sufficient in respect of applicants’ complaint that their homes had been destroyed by security forces – this ruling not to be interpreted as a general statement that remedies are ineffective in this area of Turkey.

Conclusion: objection dismissed (fifteen votes to six).

II.MERITS OF THE APPLICANTS’ COMPLAINTS

A.Establishment of the facts

The Commission had reached its findings of fact on the basis of an investigation, in the course of which documentary evidence, including written statements, was submitted and oral evidence of eleven witnesses was taken by three delegates at hearings in Ankara – witnesses were questioned and cross-examined in detail by all sides and confronted with inconsistencies and weaknesses in their evidence – the delegates were thus in a position to observe the witnesses’ reactions and demeanour and, hence, to assess the veracity and probative value of the evidence of both sides – the establishment of the facts by the Commission had been based on the appropriate evidentiary requirement, namely proof beyond reasonable doubt – it had had regard to the inconsistencies and contradictions in the evidence, notably differences between the written and oral statements, and for reasons which appeared convincing, attached more weight to latter – also bore in mind cultural and linguistic context, as well as the Government’s uncooperative conduct – the Court, having
itself carefully examined the evidence gathered by Commission, satisfied that facts as established by the latter were proved beyond reasonable doubt as far as concerned the first three applicants’ allegations, but not those of the fourth applicant.

B.Complaints of the first three applicants

1.Article 8 of the Convention

No reason to distinguish between the first applicant and the second and third applicants – given her strong family connection and the nature of her residence, first applicant’s occupation of house fell within scope of Article 8 of the Convention – furthermore the facts established by Commission and which Court had accepted disclosed a particularly grave interference with the first three applicants’ right to respect for private life, family life and home, as guaranteed by Article 8 and that the measure was devoid of justification.

Conclusion: violation (sixteen votes to five).

2.Article 3 of the Convention

In view of specific circumstances of case and finding of violation of Article 8, complaint not examined further.

Conclusion: complaint not examined further (twenty votes to one).

3.Article 5 § 1 of the Convention

Complaint not pursued before the Court.

Conclusion: not necessary to examine complaint (unanimously).

4.Articles 6 § 1 and 13 of the Convention

(a)Article 6 § 1 of the Convention

Since applicants did not attempt to make an application before the courts, not possible to determine whether Turkish courts would have been able to adjudicate on their claims had they initiated proceedings – in any event, applicants 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 (unanimously).

(b)Article 13 of the Convention

Although applicants had not approached any domestic authority before bringing their application to Strasbourg, manner in which investigations conducted, following the Commission’s communication of the application to the respondent Government, could be taken into account in examination of the applicants’ initial complaint that they did not dispose of an effective remedy – no thorough and effective investigation had been conducted into the applicants’ allegations and this had resulted in undermining the exercise of any remedies at their disposal, including the pursuit of compensation before the courts.

Conclusion: violation (sixteen votes to five).

5.Articles 14 and 18 of the Convention

Complaints not sustained by facts as established by Commission.

Conclusion: no violation (unanimously).

6.Alleged administrative practice of violating the Convention

Evidence established by Commission insufficient to allow conclusion as to the existence of any administrative practice of the violation of Articles 8 and 13.

C.Complaints of the fourth applicant

Fourth applicant accepted before Court that no facts had been established with respect to her specific complaints under Articles 2, 3, 5, 6, 8, 13, 14 and 18.

Conclusion: no violation (unanimously).

III.ARTICLE 50 OF THE CONVENTION

A.Pecuniary and non-pecuniary damage: not ready for decision – question reserved (twenty votes to one).

B.Costs and expenses: costs and expenses: awarded in part (sixteen votes to five).

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This summary by the Registry does not bind the Court.

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