AS TO THE ADMISSIBILITY OF
Application no. 11886/02
by Mehmet Şah ÇELİK 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 application lodged on 23 November 2001,
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 applicants whose names appear in the appendix are Turkish nationals. They are represented before the Court by Mr Mahmut Vefa, 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 1994 the applicants all lived in Akçabudak village, in the district of Lice in the Diyarbakır province, where they own property.
In May 1994 security forces forcibly evacuated Akçabudak on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live.
On 26 October 1995 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter either to allow the residents to return to their village or to provide them with alternative residences.
On 18 April 1996 the mayor filed a petition with the office of the Lice District Governor and asked the latter to provide financial aid and alternative residence for the residents.
On 24 July 1996 the mayor filed a petition, on behalf of the residents, with the office of the Prime Minister requesting permission to return to their village.
On 12 August 1996 the office of the Prime Minister sent the following reply to him:
“Your petition containing a request of permission to return to your village has been transmitted to the Governor’s office in Diyarbakır for examination.”
On 18 September 1996 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter to provide any type of aid for the residents.
On 25 June 1998 the mayor filed a petition with the offices of the Diyarbakır Governor of the state-of-emergency region, the Diyarbakır Governor and the Deputy Prime Minister and asked the latter to provide any type of aid for the residents.
On an unspecified date, the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor and requested financial aid and compensation for the damages they had suffered.
On 20 July 1998 the office of the Diyarbakır Governor of the state-of-emergency region sent the following reply to him:
“...The office of the Diyarbakır Governor of the state-of-emergency region had constructed five hundred houses in Çölgüzeli village and they were allocated to the citizens by lots.
Your requests will be taken in to consideration if such a construction project were to be implemented in the future.”
On 17 January 2001 the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor requesting permission to return to their village and financial aid.
On 18 and 31 July 2001 five of the applicants lodged petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses by security forces. However, the Public Prosecutor did not commence an investigation into the applicants’ allegations.
On 16 August 2001 one of the applicants, Ahmet Öztek, filed a petition with the office of the Lice District Governor requesting permission to return to his village.
On 4 September 2001 the Lice District Governor sent the following reply to the applicant:
“...The Akçabudak village has been abandoned for a long time. Therefore, there are deficiencies in the infrastructure of the village. Consequently, if you return to your village, you will experience serious difficulties as regards the roads, water, electricity, telephone, etc.
On 9 September 2001 the Commander of District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in the Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. Akçabudak was not listed among the villages to which access would be allowed under the aforementioned conditions.
On 11 September 2001, the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorists would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course the operations.
On 9 October 2001 the office of the Gendarmerie General Command attached to the Ministry of the Interior sent a letter to the mayor informing him that by reason of the military operations, which were to be conducted on 10, 11 and 12 October 2001, access to villages of Saydamlı, Yalımlı, Akçabudak and Bayırlı would not be permitted until further notice.
On 25 December 2001 the applicants’ representative, Mr Mahmut Vefa, filed a petition, on behalf of the applicants, with the office of the Gendarmerie General Command attached to the Ministry of the Interior requesting pecuniary and non-pecuniary compensation for the damage they had suffered.
On an unspecified date, Mr M.Vefa brought an action, on behalf of forty-three applicants, with the Diyarbakır Administrative Court requesting pecuniary and non-pecuniary compensation for the damage the applicants had suffered.
On 17 June 2002 the Diyarbakır Administrative Court dismissed the action on the basis of Article 5 of the Law No. 2577.
On 24 July 2002 the representative appealed against the decision of the Diyarbakır Administrative Court.
On 2 August 2002 the office of the Gendarmerie General Command sent the following reply to the complainants’representative:
“...No military operations were conducted during April 1994 in Lice.
In order to receive compensation, a copy of the civil or administrative courts’ judgments on the payment of compensation should also be submitted. Furthermore, if you did not file a petition with a court, for compensation within the statutory time limit, prescribed by Law No. 2577, your future petitions would be rejected.
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 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 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
They alleged that their rights guaranteed under Article 6 of the Convention were violated since they had been forcibly evicted from their village by the security forces.
They contended under Article 8 of the Convention that their right to respect for their family life and home was violated on account of the destruction of their homes and the forced evacuation of their village.
They maintained under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions because of the destruction of their property and the denial of access to their village.
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 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 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 destruction of property as well as 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 destruction of property as well as 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. Complaint under Article 6 of the Convention
The applicants alleged that their rights guaranteed by Article 6 had been violated since they had forcibly evicted from the village by the security forces.
The Government did not address these issues beyond denying the factual basis of the substantive complaint.
In the light of its findings with regard to Article 8 of the Convention and Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 6 is necessary.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan
A P P E N D I X
List of Applicants
1. Mehmet Şah ÇELİK
2. Abdürrezzak OKTAY
3. Ağa GÖKÇE
4. Ahmet ÖZTEK
5. Ahmet YÖNTEN
6. Aziz ERGİN
7. Aziz HAZAR
8. Bayram POLAT
9. Cevat ERGİN
10. Emine BEKTAŞ
11. Fahri OMAR
12. Fethiye SAYGIN
13. Hadin HAN
14. Hakkı AKGÜN
15. Halim ERGİN
16. Haris ÖZTEK
17. Hüseyin İMER
18. Hüseyin ORHAN
19. İhsan ERGİN
20. İsa ORHAN
21. Kazım FİDAN
22. Mahmut ÖZTEK
23. Mehmet ERGİN
24. Mehmet EŞME
25. Mehmet GÜLERYÜZ
26. Mehmet ONCAR
27. Mehmet ÖZTEK
28. Mehmet Sait ÖZTEK
29. Memduh ERGİN
30. Menaf FİDAN
31. Muhyettin ÇELİK
32. Murat GÖKÇE
33. Mustafa EŞME
34. Nevzet ERGİN
35. Ramazan TABİER
36. Recep YÖNTEN
37. Refik ERGİN
38. Remezan ÇELİK
39. Salih HAZAR
40. Sezai ŞEN
41. Sırrı EŞME
42. Şaban EBREM
43. Tahir ERGİN
44. Talip EKŞİM
45. Tevfik ERGİN
46. Yusuf POLAT
47. Zahit KAYA
48. Zinet EŞME
ÇELİK AND OTHERS v. TURKEY DECISION
ÇELİK AND OTHERS v. TURKEY DECISION