AS TO THE ADMISSIBILITY OF
Application no. 29205/02
by Ağa CİHAN
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 4 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 applicant,
Having deliberated, decides as follows:
The applicant, Mr Cihan Ağa, is a Turkish national, who was born in 1926 and lives in Ankara. He is represented before the Court by Mr A. Erdoğan, a lawyer practising in Ankara.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The applicant’s version of the facts
Until October 1994 the applicant lived in Hüllükuşağı, a village of the Ovacık district in Tunceli, where he owns property.
In 30 December 1993 the Ministry of the Interior nullified the legal personality of Hüllükuşağı.
In October 1994 security forces forcibly evacuated Hüllükuşağı on the grounds of security. The applicant and his family then moved to Ankara, where they currently live.
On 16 April 2001 the legal representative of the applicant, Mr Erdoğan filed a petition with the Ministry of the Interior requesting compensation for the damage the applicant had suffered and permission to return to his village.
On an unknown date the Ministry of the Interior replied to the applicant stating that he could return to the Arslandoğmuş village.
On 10 April 2002 Mr Erdoğan filed a further petition with the Ministry of the Interior reiterating his request for compensation.
On 9 May 2002 the State of Emergency Unit of the District Governor’s office in Ovacık sent the following reply to Mr Erdoğan:
“Your petition to the Ministry of the Interior will be considered under the ‘Return to the Village and Rehabilitation Project’.
As it is possible to reside in the Arslandoğmuş village, return to this village is at the applicant’s discretion. However, his request for compensation will not be considered since Ağa Cihan does not reside in the Ovacık district.”
2. The Government’s version of the facts
In 1992 the status of Hüllükuşağı was changed from village to hamlet. It was then attached to the village of Arslandoğmuş which is 1,5 kilometres away. At the relevant time, there were only a few families living in the Hüllükuşağı hamlet given that it lacked sufficient infrastructure. 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. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. In this connection, in a letter of 15 October 2002 the District Governor of Ovacık informed the applicant that he could return to his village and resume his economic activities if he wished. The District Governor further noted that all villages were open for re-settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region.
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 applicant alleged violations of Articles 3, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
The applicant complained that his forced displacement by the security forces amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.
He submitted under Article 6 of the Convention that he had not been granted the right of access to a court to request redress for the damages he had suffered.
He alleged under Article 8 of the Convention that his right to respect for his family life and home had been violated since he was unable to return to his village.
The applicant complained under Article 13 of the Convention that there were no effective remedies in domestic law in respect of his Convention grievances.
The applicant further contended under Article 18 of the Convention that the respondent State had applied restrictions in the State-of-emergency region in contravention of that provision.
He maintained under Article 1 of Protocol No. 1 that he had been deprived of his right to peaceful enjoyment of his possessions since the security forces had forcibly evicted his village and he had not been allowed to return to his village.
The applicant alleged under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that he had been discriminated against on the basis of his ethnic origin.
A. Complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1
The applicant complained that his forcible displacement and the refusal of the authorities to allow him to return to his home 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 applicant had failed to exhaust domestic remedies as he had not availed himself 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 applicant’s complaints and offered a reasonable prospect of success.
The applicant 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 applicant 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 applicant 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 applicant complained that there was no effective domestic remedy capable of providing redress for his Convention grievances. He 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 applicant had failed to avail himself.
The Court has already found that the Compensation Law does provide the applicant with an effective remedy in respect of his complaint concerning the alleged forced displacement and denial of access to his 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, 14 and 18 of the Convention
The applicant further complained that his rights guaranteed under Articles 6, 14 and 18 of the Convention had been breached on account of the refusal of the authorities to allow him to gain access to his 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 applicant 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
Declares the application inadmissible.
Vincent Berger Boštjan
AĞA CİHAN v. TURKEY DECISION
AĞA CİHAN v. TURKEY DECISION