AS TO THE ADMISSIBILITY OF
Application no. 28163/02
by Hasan DOĞAN 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 9 April 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 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 case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until October 1993 the applicants lived in İskender, a hamlet of the Sığınak village, in the district of Lice, in Diyarbakır, where they own property. It is to be noted that the documents attesting ownership of property, which Mr Paşa Doğan, Mr Mehmet Şirin Damla, Mr Gazi Damla and Ms İkram Damla used in İskender, bear their fathers’ names.
In October 1993, following the incidents that took place in the district of Lice on 22 and 23 October, security forces arrived to İskender and forcibly evicted the applicants from their hamlet.
On 2 February 2000 the village mayor (muhtar) of Sığınak, Mr Kemal Arslan filed a petition with the Ministry of Public Works and Settlement and requested the Ministry to solve the problems of infrastructure of the hamlet. He further informed it that the inhabitants of İskender were willing to return to their hamlet.
He received no response to his petition.
On an unspecified date three Members of Parliament, Mr Nurettin Dilek, Mr Sebgetullah Seydaoğlu and Mr Haşim Haşimi sent petitions to the Prime Minister, the Deputy Prime Minister, the Minister of the Interior, the Minister of Public Works and Settlement, the State of Emergency Regional Governor and the Diyarbakır Governor requesting help on behalf of the inhabitants of the villages of the Lice district for them to return to their villages.
In summer 2001 the applicants returned to İskender as the disturbances in the region had come to an end.
On 12 October 2001 the Tepe Gendarmes Station Command informed the applicants that access to the hamlet was prohibited and that they had to leave the village in three days. The gendarme officers further threatened and insulted the villagers.
On 15 October 2001 the applicants left the hamlet.
On 16 October 2001 one of the applicants, Mr Abdullah Doğan filed a petition with the Ministry of the Interior and the Governor’s office in Diyarbakır, on behalf of the forty-four families of İskender. In his petition Abdullah Doğan stated the above-mentioned incidents and requested permission to return to their hamlet.
On 13 November 2001 the Lice District Governor sent the following response to Mr Abdullah Doğan:
“...Your petition containing a request of permission to return to the İskender hamlet of the Sığınak village has been considered. It is appropriate to return to Sığınak as the infrastructure of İskender is damaged, since the hamlet has been uninhabited for long time...”
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 a violation of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
The applicants complained that their forced displacement by the security forces amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.
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.
They maintained 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 forcibly evicted their village and they had not been allowed 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.
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.
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. Hasan Doğan
2. Refik Doğan
3. Abdullah Doğan
4. Mahmut Doğan
5. Mevlüt Doğan
6. Mustafa Doğan
7. Teyfuk Doğan
8. Nazim Doğan
9. Hamit Doğan
10. Kadri Budak
11. Fayik Doğan
12. Salih Doğan
13. Rayif Doğan
14. Nizamettin Doğan
15. Ömer Doğan
16. Kemal Doğan
17. Halit Doğan
18. İkrameddin Doğan
19. Paşa Doğan
20. Mehmet Doğan
21. Emine Doğan
22. Ahmet Doğan
23. Fahri Doğan
24. Eşref Damla
25. Şükrü Damla
26. Mehmet Damla
27. Mehmet Şirin Damla
28. Ramazan Damla
29. Ali Damla
30. Gazi Damla
31. Naif Damla
32. Hayriye Damla
33. İkram Damla
34. Mehmet Emin Doğan
35. Feyzi Doğan
36. Abdulbaki Doğan
37. Hüseyin Doğan
38. Ekrem Doğan
39. Mehmet Doğan
HASAN DOĞAN AND OTHERS v. TURKEY DECISION
HASAN DOĞAN AND OTHERS v. TURKEY DECISION