AS TO THE ADMISSIBILITY OF
Applications nos. 41202/02 and 42098/02
by Hasan GÖZAYDIN 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 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 applicants, Hasan Gözaydın, Hasan Gündoğdu, Ali Cimin and Hıdır Topaç, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The applicants’ version of the facts
Until 1994 the applicants lived in Büyükköy and Şahverdi villages, in the district of Ovacık, in Tunceli province, where they own property.
In May 1994 security forces forcibly evacuated Büyükköy and Şahverdi on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Erzincan and Hozat where they currently live.
On an unspecified date, Hasan Gündoğdu lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces.
On 23 June 1995 the Ovacık Administrative Council decided not to conduct an investigation into Hasan Gündoğdu’s allegations as the perpetrators of the alleged acts could not be identified.
On 5 November 2001 Hasan Gündoğdu and Hasan Gözaydın filed petitions with the office of the Ovacık District Governor requesting permission to return to their villages.
On 25 May 2001 the Ovacık District Governor sent the following reply to Hasan Gözaydın:
“...On 23 June 1995 the Administrative Council decided not to conduct investigation against the state officials as the perpetrators of the alleged acts could not be identified.
Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’ ”
On 12 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the office of the Ovacık District Governor and the Tunceli Governor requesting permission to return to their villages and compensation for the damage they had suffered.
On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives:
“...The Büyükköy village is available for return and reside. Therefore, the residents can return and reside in Büyükköy.
The Şahverdi village is being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of Şahverdi village can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages.
Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.”
On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors(görevi ihmal).
On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation.
On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması).
On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors.
On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council.
On 2 October 2003 the Malatya Regional Administrative Court rejected the objection.
On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors.
On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor.
On 4 December 2003 the Elazığ Assize Court rejected the objection.
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 violations of Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1.
They alleged that their rights guaranteed under Article 6 of the Convention were violated since they were forcibly evicted from their village by the security forces.
They contended under Article 8 of the Convention that their right to respect for their family life and home was violated on account of the destruction of their homes and the forced evacuation of 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 because of the destruction of their property and the denial of access to their village.
A. Complaints under Article 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 Article 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
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 and destruction of property as well as 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 6 of the Convention
The applicants alleged that their rights guaranteed by Article 6 had been violated since they had forcibly evicted from the village by the security forces.
The Government did not address these issues beyond denying the factual basis of the substantive complaints.
In the light of its findings with regard to Article 8 of the Convention and Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 6 is necessary.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Vincent Berger Boštjan
GÖZAYDIN AND OTHERS v. TURKEY DECISION
GÖZAYDIN AND OTHERS v. TURKEY DECISION