THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 25905/02, 26130/02, 27196/02, 27197/02, 27201/02, 
27206/02, 27639/02 and 28360/02 
by Selim DEMİRBAŞ and Others 
against Turkey

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 FACTS

The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır.

A.  The circumstances of the cases

The facts of the cases, as submitted by the parties, may be summarised as follows.

1.  The applicants’ version of the facts

Applications nos. 25905/02, 27196/02, 27197/02, 
27201/02, 27206/02, 27639/02 and 28360/02 
by 39 inhabitants of the village of Dibek

Until 1994 the applicants lived in Dibek, a village of the district of Lice, in Diyarbakır, where they own property.

In April 1994 security forces forcibly evacuated Dibek and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.

On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and with the military authorities, requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office.

On 20 March 2000 one of the applicants, Hasan Güngörmez, lodged a petition with the Governor’s office in Diyarbakır, requesting to be allocated a house by this office. He received no response to his petition.

On 16 July 2001 Hasan Güngörmez applied to the Lice Magistrates’ Court (sulh hukuk mahkemesi) for an assessment of the damage he had suffered as a result of the burning down of his home and possessions.

On the same day the Lice Magistrates’ Court dismissed the applicant’s request, holding that he would not benefit from this assessment since the alleged incident had occurred a long time ago.

On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and request permission. The applicants’ village, Dibek, was not listed among these villages.

On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties.

On 18 February 2002 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered.

On the same day the applicants lodged a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, requesting that an investigation be initiated against the perpetrators of the destruction of their houses and those who prevented their access to their properties in Dibek. They relied on Articles 369, 515 and 516 of the Criminal Code. They further requested compensation for the pecuniary and non-pecuniary damages they had suffered.

On an unspecified date the Public Prosecutor’s office in Lice issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command. The applicants contend that the decision of non-jurisdiction was not served on them. They further assert that they have not been informed about the outcome of the investigation.

On 4 April 2002 the Ministry of the Interior rejected the applicants’ request, holding that the administration could not be considered to be responsible, as there had not been an operation in or around the village of Dibek in spring 1994 by the security forces. The Ministry further noted that there had been an investigation in the region and that it had not been established that any house had burned down.

In May 2002 the applicants lodged their applications with the European Court of Human Rights alleging violations of Articles 6, 8, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 23 May 2002 the applicants brought an action before the Diyarbakır Administrative Court requesting legal aid in accordance with Article 465 of the Code of Civil Procedure.

On 24 May 2002 the applicants brought a further action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses and their inability to return to their village and to have access to their property.

On 17 June 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one.

On an unspecified date the applicants appealed against the judgment of the Diyarbakır Administrative Court.

On 28 November 2002 the Supreme Administrative Court (Danıştay) dismissed the applicants’ appeal noting that the Code of Administrative Procedure did not provide a right to appeal against an administrative court’s refusal to consider a petition.

On an unspecified date the applicants filed separate cases with the Diyarbakır Administrative Court. The proceedings are still pending before the latter.

Application no. 26130/02 
by 42 inhabitants of the village of Dolunay

Until 1994 the applicants lived in Dolunay, a village of the district of Lice, in Diyarbakır, where they own property.

In April 1994 security forces forcibly evacuated Dolunay and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.

On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and military authorities requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office.

On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and to request permission. The applicants’ village, Dolunay, was not listed among these villages.

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 terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties.

On 21 December 2001 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered.

On the same day the applicants lodged a petition with the Public Prosecutor’s office in Lice, requesting that an investigation be carried out against the perpetrators of the destruction of their houses and those who prevented them from having access to their properties in Dibek. They invoked Articles 369, 515 and 516 of the Criminal Code.

On an unspecified date the Public Prosecutor’s office in Lice issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command. The applicants contend that the decision of non-jurisdiction was not served on them. They further assert that they have not been informed about the outcome of the investigation.

On an unspecified date the applicants brought an action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses, their inability to return to their village and to have access to their property.

On 19 April 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one.

On an unspecified date one of the applicants, Ağa Şaşmaz lodged a complaint with the Public Prosecutor’s office in Lice against the Kayacık Gendarmes Station Commander, Hüseyin Güven. The applicant alleged that Hüseyin Güven had threatened him concerning his petition with the Ministry of the Interior. He further contended that he had been compelled to sign statements in the Kayacık Gendarmes Station.

On 14 May 2002 the Lice Public Prosecutor issued a decision of non-prosecution concerning the petition of Ağa Şaşmaz, noting that he had not substantiated his allegations.

On 2 August 2002 the Ministry of the Interior rejected the applicants’ request noting that the statutory time limit under Article 13 of the Code of Administrative Procedure had expired.

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. Currently there was no obstacle preventing villagers from returning to their homes and possessions 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).

COMPLAINTS

The applicants alleged violations of Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.

They complained 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

The applicants contended 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.

The applicants submitted under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.

They contended under Article 1 of the Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions since the security forces had destroyed their houses and had not been allowed to return to their village.

THE LAW

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.  Complaints under Articles 6 of the Convention

The applicants further complained that their rights guaranteed under Articles 6 of the Convention had been breached on account of the refusal of the authorities to allow them to gain access to their possessions.

The Government did not address these issues beyond denying the factual basis of the substantive complaints.

The Court notes that in its Doğan and Others v. Turkey pilot judgment (cited above, §§ 118-133) it has examined complaints similar to those raised by the applicants in the instant case 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 follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

 

A P P E N D I X

List of Applicants

25905/02

1.      Selim Demirbaş

2.      Hasan Güngörmez

3.      Mustafa Etyemez

4.      Muhyeddin Çelik

5.      Sait Karaman

26130/02 

1.      Rukiye Aksoy

2.      Şevki Aydemir

3.      Ramazan Aydemir

4.      Resul Aydemir

5.      Mehmet Şah Aydemir

6.      Mehmet Aksoy

7.      Hüseyin Aksoy

8.      Etem Aksoy

9.      Cafer Yıldırım

10.      Tahsin Aksoy

11.      Mahmut Yıldırım

12.      Necmettin Yıldırım

13.      Abdurrahman Yıldırım

14.      Mehmet Reşit Yıldırım

15.      İsmail Yıldırım

16.      Abdurrezak Yıldırım

17.      Abdulhalim Yıldırım

18.      Raife Güngörmez

19.      Ramazan Güngörmez

20.      Fahri Güngörmez

21.      Ayşe Cingöz

22.      Mehmet Salih Cingöz

23.      Aziz Cingöz

24.      Mehmet Alcan

25.      Recep Alcan

26.      Mehmet Ali Alcan

27.      Metin Alcan

28.      Fesih Alcan

29.      Şehmus Budak

30.      Sait Budak

31.      Metin Budak

32.      Ahmet Budak

33.      Gülsüm Balta

34.      Remziye Balta

35.      İsmet Balta

36.      Halime Çelebi

37.      Diyaddin Akdal

38.      Salih Akdal

39.      Ramazan Akdal

40.      Şaban Ceylan

41.      Ali Çakal

42.      Mehmet Çiçek

27196/02 

1.      Yusuf Baran

2.      Mehmet Baran

3.      Fadli Baran

4.      Ramazan Baran

5.      Bedri Baran

6.      Amine Baran

7.      Ahmet Baran

27197/02 

1.      Mehmet Demirbaş

2.      Mehmet Bozkuş

3.      Mevlüt Bozkuş

4.      Ahmet Demirbaş

5.      Ahmet Güngörmez

27201/02 

1.      Selhattin Aksoy

2.      Selim Aksoy

3.      Hüseyin Aksoy

4.      Abdurrahman Aksoy

5.      Mehmet Şerif Aksoy

6.      Fahriye Aksoy

27206/02 

1.      Cezair İnceören

2.      İbrahim İnceören

3.      Ömer İnceören

4.      Ahmet İnceören

5.      Mehmet Ali İnceören

27639/02 

1.      Cemal Bayram

2.      Hamit Bulut

3.      Ali Demirbaş

4.      Şefik Karaman

5.      Bahri Saruhan

28360/02 

1.      Muzaffer Aksu

2.      Ömer Aksu

3.      Mustafa Aksu

4.      Hasan Mercan

5.      Mustafa Mercan

6.      Vesile Mercan

DEMİRBAŞ AND OTHERS v. TURKEY DECISION


DEMİRBAŞ AND OTHERS v. TURKEY DECISION