THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 27696/02, 27901/02, 28680/02, 28740/02,28895/02, 29851/02 and 29888/02  
by Eşref DEMİR 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 Ms H. D. Deyar and Mr B. Deyar, lawyers 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

Applications nos. 27696/02, 27901/02, 28680/02, 28740/02 and 29888/02 
by 77 inhabitants of the Ziyaret village

Until 1994 the applicants lived in Ziyaret (Fis), a village of the Lice district in Diyarbakır, where they own property. It is to be noted that the documents attesting ownership of property, which Ali Balare, Asiye Balare, Emin Balare Emin Balare, Abdullah Balare, Zeki Balare, Zeliha Balare, Zeliha Balare and İmiş Balare, Mahsun Fidan, Şahin Fidan, Dilan Fidan, Netice Fidan, Necla Fidan and Abdulmuttalip Fidan (Application nos. 27901/02 and 28740/02) used in Ziyaret, bear their mothers’ names. It is further to be noted that the documents attesting ownership of property, which Mehmet Can Fidan, İbrahim Fidan, Fatma Fidan, Necla Fidan, Meyrem Fidan, Mehmet Ali Fidan, Mekin Fidan, Tekin Fidan, Recep Fidan, Tarık Fidan, Binevş Fidan and Hasibe Fidan (Application no. 29888/02) used in their village bear their brother’s name.

On 14 May 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. The security forces arrived to Ziyaret again and destroyed the remainder of the village on 23 January 1995 and 1 October 1995.

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 Ziyaret 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 gendarmes stations and request permission.

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 25 December 2001 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and  
non-pecuniary damages they suffered and asked for permission to return to their village.

The applicants received no response to their petition.

On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 14 May 1994, 23 January 1995 and 1 October 1995.

On 17 January 2002 the Lice Public Prosecutor issued a decision of  
non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of the Military Criminal Code (Law no. 1632).

Application no. 28895/02 
by 2 inhabitants of the Tepecik village

The applicants were residents in Tepecik, a village of the Kocaköy district in Diyarbakır, where they own property.

On 22 December 1992 security forces and village guards entered Tepecik and destroyed some of the houses in the village. They came again on 4 November 1994, 30 October 1995 and 8 November 1995, destroyed the remainder of the village and evicted the inhabitants, who moved to Diyarbakır, where they currently live.

On 12 February 2001 two other inhabitants of Tepecik, Mr Şerefettin Yaşa and Mr Kadri Yaşa, filed a petition with the Public Prosecutor’s office in Kocaköy complaining about the killing of eight people, the burning down of their house and the destruction of their trees and farms by security forces and village guards.

On 8 October 2001 the Kocaköy Public Prosecutor decided to discontinue proceedings. Assessing the offence in question as theft, he decided that the statutory time-limit for the offence in question had expired.

On 24 October 2001 the legal representative of Mr Şerefettin Yaşa and Mr Kadri Yaşa lodged an appeal with the Siverek Assize Court against the decision of the Kocaköy Public Prosecutor.

On 22 November 2001 the Siverek Assize Court upheld the decision of the Kocaköy Public Prosecutor.

The applicants considered themselves exempt from lodging further complaints concerning the burning down of their houses following the decision of the Siverek Assize Court. It is to be noted that the applicants did not submit any document to the Court attesting that they had filed petitions containing a request for permission to return to their villages.

Application no. 29851/02 
by 33 inhabitants of the Hedik village

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

On 22 November 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.

On 9 September 2001 the District Gendarmes Command in Lice sent a letter to the village mayors in Lice. According to that letter, access to Ziyaret 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, they would be required to apply to gendarmes stations and request permission.

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 security forces would not be responsible for any casualties.

On 7 January 2002 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and  
non-pecuniary damages they suffered and permission to return to their village.

On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır to be referred to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 22 November 1994.

On 16 January 2002 the Lice Public Prosecutor issued a decision of  
non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of Law no. 1632 (Military Criminal Code).

On 25 April 2002 the State of Emergency Regional Governor’s office in Diyarbakır rejected applicants’ claim for compensation. It is to be noted that the applicants did not submit any document attesting the response of this office.

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).

COMPLAINTS

The applicants alleged violations of Articles 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.

The applicants complained that the destruction of their property amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

The applicants submitted under Article 6 of the Convention that they had not been granted the right of access to a court to request redress for the damages they had suffered.

They alleged 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.

The applicants complained under Article 13 of the Convention that there were no effective remedies in domestic law in respect of their Convention grievances.

They contended under Article 1 of 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 they had not been allowed to return to their village.

THE LAW

A.  Complaints under Articles 3 and 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 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 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, 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. 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, destruction of property 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.

C.  Complaints under Article 6 of the Convention

The applicants further complained that their rights guaranteed under Article 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

Application no. 27696/02 

1.      Eşref Demir

2.      Feyzi Demir

3.      Salih Demir

4.      Kadri Filizay

5.      Hüsnü Demir

6.      Nurettin Demir

7.      Ahmet Deniz

8.      Mehmet Deniz

9.      Kasım Doğan

10.      Salhattin Filizay

11.      Hüseyin Zuğurli

12.      Remzi Filizay

13.      Ömer Tolan

14.      Abdulhay Demir

15.      Abdullah Doğan

16.      Baki Demir

17.      Selahattin Deniz

18.      Hilmi Demir

19.      Abdulhamit Demir

20.      İzzettin Demir

21.      Veysi Deniz

Application no. 27901/02 

1.      Hasan Balare

2.      Osman Balare

3.      Ali Balare

4.      Asiye Balare

5.      Emin Balare

6.      Abdullah Balare

7.      Zeki Balare

8.      Zeliha Balare

9.      İmiş Balare

10.      Fatma Balare

11.      Şirin Beyaz

Application no. 28740/02 

1.      Mahmut Fidanten

2.      Havva Fidan

3.      Mahsun Fidan

4.      Şahin Fidan

5.      Dilan Fidan

6.      Abdullah Fidanten

7.      Netice Fidan

8.      Necla Fidan

9.      Abdulmuttalip Fidan

10.      Salih Fidanboy

11.      Kadir Fida

12.      Seyithan Fidanten

13.      Hüsna Fidan

14.      Edibe Fidan

15.      Yemlihan Fidan

16.      Mehmet Fidan

17.      Abdulvasih Fidan

18.      Halim Fidan

19.      Abdulgafur Fidanboy

20.      Mehmet Emin Fidanboy

21.      Kemal Fidanboy

22.      Ahmet Fida

23.      Recep Fidanten

Application no. 28680/02 

1.      Ali Güzel

2.      Mustafa Güzel

3.      Ahmet Güzel,

Application no. 29888/02 

1.      Hayriye Demir

2.      Zeki Fidan

3.      Mehmet Fida

4.      Hanefi Fida

5.      Tahsin Fidan

6.      Halis Demir

7.      Mehmet Can Fidan

8.      İbrahim Halil Fidan

9.      Fatma Fidan

10.      Necla Fidan

11.      Meyrem Fidan

12.      Mehmet Ali Fidan

13.      Mekin Fidan

14.      Tekin Fidan

15.      Recep Fidan

16.      Tarık Fidan

17.      Binevş Fidan

18.      Hasibe Fidan

19.      Şakir Fida

Application no. 28895/02 

1.      Celal Ateş

2.      Tevfik Ateş

Application no. 29851/02

1.      Ahmet Aldan

2.      Mevlüde Aldan

3.      Sıddık Aldan

4.      Ali Aldan

5.      Sıdıka Aldan (Akdemir)

6.      Emine Aldan (Akdemir)

7.      Vahibe Aldan

8.      Eşref Aldan

9.      Nezir Aldan

10.      Ümran Aldan

11.      Hüsamettin Aldan

12.      Fesih Aldan

13.      Ferman Aldan

14.      Şaile Aldan

15.      Tarık Aldan

16.      Ziya Aldan

17.      Ayser Karataş (Aldan)

18.      Mehmet Hanifi Aldan

19.      Ali Akdemir

20.      Şükrü Akdemir

21.      Emin Aldan

22.      Giyasettin Aldan

23.      Kemal Aldan

24.      Fettullah Aldan

25.      Kezibe Dağ (Aldan)

26.      Fevziye Avcı (Aldan)

27.      Esat Aldan

28.      Bedriye Aldan

29.      Enver Aldan

30.      Hilmi Aldan

31.      Kazım Aldan

32.      Nizamettin Aldan

33.      Muhittin Aldan

EŞREF DEMIR AND OTHERS v. TURKEY DECISION


EŞREF DEMIR AND OTHERS v. TURKEY DECISION