AS TO THE ADMISSIBILITY OF
Application no. 28967/02
by Yahya DERİN 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 17 June 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, Yahya Derin, Aydın Gökhan, Kadri Ersancan, Şeyhmus Büyükşahin, Yahya Büyükşahin, Tahsin Bağır and Hayriye Bağır, are Turkish nationals. They currently live in Istanbul. They are represented before the Court by Mr M.A. Kırdök, Mr Özcan Kılıç and Mr Hasan Kemal Elban, lawyers 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
The applicants own property in the Şiro quarter, in the district of Lice, in Diyarbakır. The applicants had not used their property for ten years as the 2nd Interior Security Brigade Command had prohibited access to the area due to security reasons. It is to be noted that the applicants, excluding Mr Yahya Derin, did not submit any document to the Court attesting their ownership of property in Şiro.
In November and December 2001 the applicants brought a declaratory action before the Lice Magistrates’ Court (sulh hukuk mahkemesi), requesting the court to determine their damage due to their inability to have access to their property.
On 8 February 2002 the president of the Lice Magistrates’ Court, an expert and four of the applicants, Mr Yahya Derin, Mr Aydın Gökhan, Mr Kadri Ersancan and Mr Şeyhmus Büyükşahin went to Şiro in order to inspect the property of these applicants. They could not gain access to the property of the applicants as they were informed by gendarme officers that there might be land mines in the area. The Hani Forestry Management Director, who had been informed of the enquiry by the 2nd Interior Security Brigade Command, notified the judge, the expert and the applicants that the area in question appeared to be forestry land on the forestry management plans and the country map. He further stated that the area could not be the subject of private property.
On an unspecified date the expert, Mr Hakan Ünal drafted an agricultural expert report, in which he estimated the annual incomes of the four applicants from the lands in questions.
On 14 March 2002 the Hani Forestry Management Director submitted a report to the Lice Magistrates’ Court regarding the nature of the immovable property in Şiro. According to this report the ownership of the property in question was disputed.
On 15 March 2003 the Lice Magistrates’ Court dismissed the request of assessment of damage by the other three applicants, Ms Hayriye Bağır, Mr Yahya Büyükşahin and Mr Tahsin Bağır, holding that these applicants would not benefit from a declaratory judgment since there was a dispute concerning the ownership of the property in question.
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.
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 Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
They alleged under Article 13 of the Convention that they had had no effective remedy for their grievances under Article 1 of Protocol No. 1.
They contended under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions since they had not been allowed to return to their village.
A. Complaint under 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 breach of Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
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 grievances under Article 1 of Protocol No. 1. 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
DERİN AND OTHERS v. TURKEY DECISION
DERİN AND OTHERS v. TURKEY DECISION