THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58056/00
by Salih ÖZKAY and Others
against Turkey
The European Court of Human Rights (Third Section), sitting on 8 February 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 17 June 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 Salih Özkay, Sabri Özkay, Giyasettin Özkay, Mehmet Şah Cengiz, Celal Cengiz, Orhan Cengiz, Resul Cengiz and Sabahattin Cengiz, are Turkish nationals and live in Diyarbakır. They were represented before the Court by Ms A. Demirtaş, a lawyer practising in Diyarbakır.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until 1997 the applicants lived in Doğruyol village in the district of Baykan in Siirt, where they own property.
In the 1990s the inhabitants of Doğruyol were subjected to threats issued by the village guards of the neighbouring villages since they refused to serve as village guards.
On 7 November 1997 some village guards came to Doğruyol and burned down the applicants’ homes and barns.
In the course of the alleged events, security forces arrived in Doğruyol but they did not take any action to stop the village guards.
Following the incident, the villagers and the applicants gave their statements to the police officers at the Ziyaret police station.
On 10 March 1998 the applicants filed petitions with the Public Prosecutor’s office in Baykan complaining about the incident.
On 2 April 1998 the Baykan Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council attached to the District Governor’s Office in Baykan.
On 15 February 1999 the public prosecutor’s decision was served on the applicants’ representative.
On 6 August 1999 the applicants’ representative filed a petition with the Administrative Council and requested information on the outcome of the investigation.
The applicants had not received any response to their petition by the time of the current 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 recommencing 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. It 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-...).
COMPLAINTS
The applicants alleged violations of Articles 3, 5, 6, 8, 13, 14 and 17 of the Convention and Article 1 of Protocol No. 1.
They complained that the destruction of their property amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.
They 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.
They submitted under Article 6 of the Convention that they had been denied the right of access to a court to seek redress for their damages.
They complained 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.
Under Article 13 of the Convention, they alleged that there were no effective remedies in domestic law in respect of their Convention grievances.
They further complained under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that they had been discriminated against on the basis of their ethnic origin.
They alleged under Article 17 of the Convention that their rights under Articles 3, 5, 6, 8, 13 and 14 had not been protected by the respondent State.
Finally, they contended under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions.
THE LAW
A. Complaints under Articles 3, 5, 8 and 17 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, 5, 8 and 17 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 5 of the Convention
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law”
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 17 of the Convention
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
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 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. Complaints under Articles 6 and 13 of the Convention
The applicants submitted that they were not granted a right of access to a court to request compensation for the destruction of their property. They also complained that there was no effective domestic remedy capable of providing redress for their Convention grievances. They relied on Articles 6 and 13 of the Convention, which provide:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13
“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 Court considers that these complaints collectively relate to the availability of effective remedies to the applicants within the meaning of Article 13. The Court reiterates its finding that the Compensation Law does provide applicants in these types of cases with an effective remedy in respect of their complaints concerning alleged forced displacement, destruction of property and/or denial of access to their property.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 14 of the Convention
Finally, the applicants maintained that because of their ethnic origin they had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 3, 5, 6, 8, 13 and 18 of the Convention and Article 1 of Protocol No. 1.
Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court notes that in its Doğan and Others v. Turkey pilot judgment (cited above, §§ 118-133) it has examined a similarly framed complaint and found it unsubstantiated. It finds no particular circumstances in this case which would require a departure from its finding in the mentioned case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. Accordingly, Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy