AS TO THE ADMISSIBILITY OF
Applications nos. 11240/03, 11304/03,
11335/03, 11338/03, 11352/03, 11368/03, 11377/03, 11388/03, 11393/03,
11395/03, 11396/03, 11412/03, 11436/03, 11443/03, 11447/03, 11456/03,
11459/03, 11464/03, 11472/03, 11483/03, 11498/03, 11505/03, 11529/03,
11542/03, 11553/03, 11615/03, 11679/03, 11688/03, 11696/03, 11700/03,
11702/03, 11707/03, 11713/03, 11716/03, 11719/03, 11723/03, 11727/03,
11750/03, 12978/03, 12980/03, 12982/03, 12992/03, 12995/03, 12999/03,
13001/03 and 13006/03
by Ahmet MAYDA and Others
The European Court of Human Rights (Third Section), sitting on 30 March 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mrs R. Jaeger, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above applications lodged in 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases 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 applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The applicants’ version of the facts
Until 1994 the applicants lived in Kılıçlı village, in the district of Lice, in Diyarbakır province, where they own property. It is to be noted that Tajdin Ayşin, Osman Ayşin, Hanifi Ayşin and Hikmet Ayşin did not submit any certificate to the Court attesting their ownership of the property in Kılıçlı.
Furthermore, Ahmet Mayda, Nihat Ayşin, Rahim Ayşin, Rahim Ayşin, Abdulvahap Ayşin, Bayram Ayşin, İhsan Ayşin, Hadin Ayşin and Muhyetin Ayşin did not submit their authority forms.
In May 1994, security forces forcibly evacuated Kılıçlı on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır and its districts where they currently live.
On 30 May1997 the mayor of Kılıçlı village filed a petition, on behalf of the residents, with the State of Emergency Department of the Governor’s office in Diyarbakır and asked the latter to allow the residents of the village to cultivate their lands.
On 1 October 1999 the applicants filed petitions with the office of the District Governor’s office in Lice and requested permission to return to their village.
On 5 October 1999 the Lice District Governor rejected their requests.
On an unspecified date, the mayor of Kılıçlı filed a petition, on behalf of the residents, with the office of the Prime Minister and requested permission to return to their village.
On 3 April 2002 the office of the Prime Minister sent a reply to the mayor and informed him that his petition was transmitted to the Ministry of the Interior.
On 11 April 2002 the mayor of Kılıçlı filed a further petition, on behalf of the residents, with the office of the Prime Minister and requested permission to return to their village.
On 30 September 2002 the Research, Planning and Coordination Committee attached to the Ministry of the Interior sent a reply to the mayor and informed him that Kılıçlı village was not yet suitable for residence.
It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
2. The Government’s version of the facts
The official records indicated that the inhabitants of Kılıçlı had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their 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).
The applicants alleged violations of Articles 8 and 13 of the Convention and Article 1 of Protocol No.1.
The applicants complained under Article 8 of the Convention that their right to respect for their family life and home was violated as they had been forcibly displaced from their villages and had been prevented from returning.
As to Article 1 of the Protocol No. 1, the applicants alleged that their right to peaceful enjoyment of their property was violated as they had been prevented from returning to their villages and using their possessions.
The applicants alleged under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.
A. Complaints under Article 8 of the Convention and Article 1 of Protocol No. 1
The applicants complained that their forcible displacement and the refusal of the authorities to allow them to return to their homes and land had given rise to breaches of Article 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
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 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 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.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Vincent Berger Boštjan
A P P E N D I X
List of Applicants
1. 11240/03 Ahmet Mayda
2. 11304/03 Hikmet Ayşin
3. 11335/03 Kadri Ayşin
4. 11338/03 Abdurrahim Ayşin
5. 11352/03 Şaban Ayşin
6. 11368/03 Yahya Ayşin
7. 11377/03 Abdurrahman Ayşin
8. 11388/03 Nihat Ayşin
9. 11393/03 Abdullah Ayşin
10. 11395/03 Tajdin Ayşin
11. 11396/03 Rabia Ayşin
12. 11412/03 Ramazan Ayşin
13. 11436/03 Mehmet Ayşin
14. 11443/03 Osman Ayşin
15. 11447/03 Heybet Ayşin
16. 11456/03 Nazmi Ayşin
17. 11459/03 Abdulkerim Ayşin
18. 11464/03 Tayyip Ayşin
19. 11472/03 Ahmet Ayşin
20. 11483/03 Dursun Ayşin
21. 11498/03 Adnan Ayşin
22. 11505/03 Kazım Ayşin
23. 11529/03 Burhan Ayşin
24. 11542/03 Şahabettin Ayşin
25. 11553/03 Çerkez Ayşin
26. 11615/03 Tarik Ayşin
27. 11679/03 Kerem Ayşin
28. 11688/03 Mustafa Ayşin
29. 11696/03 Necat Ayşin
30. 11700/03 Fuat Ayşin
31. 11702/03 Ferzende Ayşin
32. 11707/03 Mihan Ayşin
33. 11713/03 Mirza Ayşin
34. 11716/03 Raif Ayşin
35. 11719/03 Ferman Ayşin
36. 11723/03 Nevzat Ayşin
37. 11727/03 Abdullah Ayşin
38. 11750/03 Mehmet Zait Ayşin
39. 12978/03 Rahim Ayşin
40. 12980/03 İdris Ayşin
41. 12982/03 Abdulvahap Ayşin
42. 12992/03 Hanifi Ayşin
43. 12995/03 Bayram Ayşin
44. 12999/03 İhsan Ayşin
45. 13001/03 Hadin Ayşin
46. 13006/03 Muhyetin Ayşin
MAYDA AND OTHERS v. TURKEY DECISION
MAYDA AND OTHERS v. TURKEY DECISION