AS TO THE ADMISSIBILITY OF
Application no. 29664/02
by Sait ATAGÜN and Others
The European Court of Human Rights (Third Section), sitting on 22 June 2006 as a Chamber composed of:
Mr J. Hedigan,
Mr L. Caflisch,
Mr R. Türmen,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 27 May 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, Sait Atagün, Zeydim Delidere and Nasraddin Tekdal, are Turkish nationals who were born in 1945, 1952 and 1927 respectively and live in Diyarbakır. They were represented before the Court by Mr Hasip 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
The applicants each owned a shop at the Atatürk Shopping Centre in the Lice district of Diyarbakır.
On 5 June 1993 the windows of the applicants’ shops were allegedly broken and some of their goods were damaged.
On 6 June 1993 the applicants filed a petition with the Lice public prosecutor’s office complaining that their shops had been intentionally damaged by members of the security forces. The applicants further requested that their damage be assessed. On the same day, an incident report (olay yeri tespit tutanağı) was drafted and the damage was assessed by experts appointed by the Public Prosecutor’s Office.
On 7 June 1993 the public prosecutor took statements from the applicants and witnesses.
On 24 August 1998 the public prosecutor of Lice issued a decision to discontinue the investigation on the grounds that the perpetrators of the crime had still not been found and that the statutory time-limit for the offence in question had expired. This decision was served on the applicants on 21 and 22 May 2002.
2. The Government’s version of the facts
The investigation carried out by the authorities indicated that the security forces were not responsible for any damage caused to the applicants’ property, as alleged. The gendarmes under the command of the Gendarmerie Headquarters did not conduct an operation and no team or patrol was on duty in the relevant area on the incident date.
Furthermore, 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 suffered damages due to terrorist activities and/or the fight against terror.
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 applicants 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 Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
The applicants complained under Article 1 of Protocol No. 1 that their right to the peaceful enjoyment of their possessions had been violated since members of the security forces had deliberately damaged their shops.
The applicants contended under Article 13 of the Convention that there had been no effective remedies in domestic law to obtain compensation and to secure the prosecution of the perpetrators.
A. Complaint under Article 1 of Protocol No. 1
The applicants complained that the security forces’ alleged misconduct had given rise to a breach of Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
“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 Court observes that under the Compensation Law 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 conduct and misconduct by the security forces in charge of anti-terrorism operations.
The Court has already examined that remedy and found it effective in respect of similar complaints from 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 Court has already found that the Compensation Law does provide the applicants with an effective remedy in respect of their complaint concerning the alleged destruction of property. That finding is valid in the context of the complaint under Article 13.
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
ATAGÜN AND OTHERS v. TURKEY DECISION
ATAGÜN AND OTHERS v. TURKEY DECISION