THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10735/02
by Yusuf TUNÇ
against Turkey
The European Court of Human Rights (Third Section), sitting on 28 September 2006 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrE. Myjer,
MrsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 30 January 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 applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Yusuf Tunç, is a Turkish national who was born in 1955 and lives in Elazığ. He was represented before the Court by MM. A. C. Zülfikar, K. Çetin and M. Gündoğdu, lawyers practising in Elazığ.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s version of the facts
Until 1994 the applicant and his family lived in the Çambulak village, a hamlet of the Balveren village in the district of Ovacık in Tunceli province, where he owned property. The applicant submitted documentary evidence, proving his ownership of the property which bears the stamp of the relevant municipality of 16 August 2001. He submitted another document proving ownership of properties belonging to his father, bearing the stamp of the relevant municipality of 25 December 2001.
In October 1994 security forces forcibly evacuated the Çambulak village on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Elazığ where they currently live.
In 1994 the applicant filed petitions with the offices of the public prosecutor in Ovacık, the State of Emergency Region Governor and the Ovacık District Governor, requesting redress for the damage he had suffered and sought permission to return to his village. However, he did not receive any response from these authorities.
On unspecified dates, he filed petitions with the Ministry of Public Works and Settlement and the Ministry of Interior requesting permission to return to his village and compensation for the damage he suffered.
On 2 February 1999 he lodged petitions with the offices of the District Governor, the Presidency of the National Assembly, the Prime Minister’s office and the President’s office in order to be provided with government aid. He further asked the authorities to permit him to return to his village.
2. The Government’s version of the facts
On 24 August 2001, the applicant filed a petition with the Office of the Ovacık Governor regarding the alleged forced evacuation.
On 31 October 2001 the Office of the Ovacık Governor replied to the applicant’s petition, stating that the applicant’s request would be considered under the scope of the “Return to the Village and Rehabilitation Project” and that he would be informed of the developments.
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 Government further maintained that there are already thousands of applications lodged before these Commissions seeking compensation and that any 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 applicant complained under Article 3 of the Convention that he was subjected to inhuman and degrading treatment since the security forces destroyed his house and forced him to leave his house. He alleged that the destruction of his house deprived him of his liberty and security within the meaning of Article 5 of the Convention.
The applicant submitted under Article 6 § 1 that the administrative authorities did not take decisions to prosecute the state officials who are the alleged perpetrators of the destruction of his house and forced evacuation from his village.
He contended under Article 8 of the Convention that his right to respect for his family life and home was violated, since he was forcibly displaced from his village and denied access to his property.
Invoking Article 13 of the Convention, the applicant alleged that he had no effective remedy for his various Convention grievances.
He further maintained under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that he was discriminated against on the basis of his ethnic origin.
Finally, he complained under Article 1 of Protocol No. 1 that his right to the peaceful enjoyment of his property was violated as the security forces destroyed his house and forced him to leave his village.
THE LAW
A. Complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1
The applicant complained that his forcible displacement and destruction of his property as well as the refusal of the authorities to allow him to return to his home 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 Court observes that under the compensation law of 27 July 2004 it is open to persons, such as the applicant in the present case whose application is pending before the Court, to lodge until 3 January 2007 an application with the compensations commissions in order to claim compensation for the damage he had sustained as a result of his 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 applicant 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 applicant complained that there was no effective domestic remedy capable of providing redress for his Convention grievances. He 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 Court has already found that the Compensation Law does provide the applicant with an effective remedy in respect of his complaint concerning the alleged forced displacement, destruction of property and denial of access to his 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 applicant contended that he was deprived of his liberty and security in violation of Article 5 of the Convention and that his rights guaranteed under Articles 6 of the Convention had been breached on account of the refusal of the authorities to allow him to gain access to his property. Invoking Article 14 of the Convention, he alleged that he suffered discrimination on account of his Kurdish origin.
The Court notes that in its Doğan and Others v. Turkey pilot judgment (cited above, §§ 118-133) it has examined similar complaints raised under Articles 6 and 14 of the Convention 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 further notes that the applicant failed to substantiate his allegations under Article 5 of the Convention.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
Accordingly, The Court concludes that Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy