THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 41275/02, 5307/03, 5333/03, 5329/03, 5321/03, 5317/03 and 5312/03  
by Mehmet AYDIN and Others 
against Turkey

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 FACTS

The applicants, Mehmet Aydın, İbrahim Durgun, Hasan Çelik, Süleyman Aygören, Emir Aygören, Celal Aygören and Hüseyin Aygören, are Turkish nationals. They are represented before the Court by Mr H. Aygün and Mr Ö. Kaplan, lawyers practising in Tunceli.

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

Application no. 41275/02 
by Mehmet Aydın

Until 1994 the applicant lived in Çalbaşı, a village of the Ovacık district, in Tunceli. He owns property in a neighbouring village, Kozluca.

In 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. The applicant then moved to Elazığ, where he currently lives.

On 5 February 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.

On 12 February 2001 the District Governor’s office in Ovacık sent the following reply to the applicant:

“It is established, by the decision of the Administrative Council of 23 June 1995 that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against the state officers.

Your petition will be considered under the ‘Return to the Village and Rehabilitation Project.”

On 12 May 2002 and 17 May 2002 the applicant filed further petitions with the District Governor’s office in Ovacık and the Governor’s office in Tunceli respectively. He requested permission to return to his village and compensation for the damages he suffered.

On 11 June 2002 the Governor’s office in Tunceli sent the following reply to the applicant:

“Your petition containing a request of permission to return to your village has been received by the Governor’s Office and will be considered under the ‘Return to the village and Rehabilitation Project’.”

On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Ovacık, Hozat and Tunceli authorities had acted negligently in the exercise of their public duties.

On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and in accordance with Articles 3 and 12 of Law no. 4483 sent the case file to the Public Prosecutor at the Court of Cassation, who decided on 30 September 2002 not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not take any decision as to the complaint against the Ovacık and Hozat District Governors.

Application no. 5317/03 
by İbrahim Durgun

Until 1994 the applicant lived in the Bilekli village in the district of Hozat, in Tunceli, where he owns property.

In 1994, security forces forcibly evacuated Bilekli on account of disturbances in the region. The applicant then moved to Elazığ, where he currently lives.

On 14 May 2002 the applicant filed a petition with the District Governor’s office in Hozat requesting permission to return to his village. He received no response to his petition.

On 17 May 2002 he filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered.

On 07 June 2002 the Governor’s Office in Tunceli sent the following reply to the applicant:

“Your petition containing a request of permission to return to your village has been received by the Governor’s Office and will be considered under the ‘Return to the village and Rehabilitation Project’.”

On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties.

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 in accordance with Articles 3 and 12 of Law no. 4483.

On 30 September 2002 the Public Prosecutor at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors

On 12 May 2003 the applicant informed the Court that the Tunceli Governor had authorised re-settlement in the villages of Tunceli. The applicant further stated that returning and settling in the Bilekli village was anyhow impossible since the infrastructure and the houses of the village were completely ruined.

Application no. 5312/03 
by Hasan Çelik

Until 1994 the applicant lived in the Ağırbaşak village in the district of Hozat, in Tunceli. He owns property in Ağırbaşak and in a neighbouring village Çölkerek. It is to be noted that, some of the documents attesting ownership of property, which the applicant submitted to the Court, bear his father’s name.

In 1994, security forces forcibly evacuated Ağırbaşak on account of disturbances in the region. The applicant then moved to Hozat, where he currently lives.

On 14 May 2002 the applicant filed a petition with the District Governor’s office in Hozat requesting permission to return to his village. He received no response to his petition.

On 17 May 2002 he filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered.

On 07 June 2002 the Governor’s Office in Tunceli sent the following reply to the applicant:

“Your petition containing a request of permission to return to your village has been received by the Governor’s Office and will be considered under the ‘Return to the village and Rehabilitation Project’.”

On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties.

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 in accordance with Articles 3 and 12 of Law no. 4483.

On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors.

Applications nos. 
5307/03, 5333/03, 5329/03 and 5321/03

Until 1994 the applicants lived in Kızılkilise, a hamlet of the Bilekli village in the district of Hozat, in Tunceli. In 1994 security forces forcibly evacuated Kızılkilise on account of disturbances in the region.

Süleyman Aygören (Application no. 5307/03)

The applicant owns property in neighbouring villages, Ormanyolu and Tağer. The applicant then moved to Istanbul, where he currently lives.

Emir Aygören (Application no. 5333/03)

The applicant owns property in neighbouring village, Boydas and Tağer. The applicant then moved Hozat, where he currently lives.

Celal Aygören (Application no. 5329/03)

The applicant owns property in neighbouring village, Ormanyolu. The applicants then moved Hozat, where he currently lives.

Hüseyin Aygören (Application no.5321/03)

The applicant owns property in neighbouring villages, Ormanyolu and Boydaş. The applicant then moved to a neighbouring village, Karabakir, where he currently lives.

On 14 May 2002 another inhabitant of Kızılkilise, Mr Yusuf Yeşil, filed a petition with the District Governor’s office in Hozat requesting permission to return to his village he not received no response to his petition.

On 17 May 2002 Mr Yusuf Yeşil filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered.

On 07 June 2002 the Governor’s office in Tunceli sent the following reply to Mr Yusuf Yeşil:

“Your petition containing a request of permission to return to your village has been received by the Governor’s Office and will be considered under the ‘Return to the village and Rehabilitation Project’.”

On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties.

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 in accordance with Articles 3 and 12 of Law no. 4483.

On 30 September 2002 the Public Prosecutor at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors.

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).

COMPLAINTS

The applicants alleged violations of Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1.

The applicants alleged under Article 6 of the Convention that they had been denied access to court to challenge the decisions of the authorities.

The applicants complained under Article 8 of the Convention that their right to respect for their family life and home was violated as they had been forcibly displaced from their villages and had been prevented from returning.

As to Article 1 of the Protocol No. 1, the applicants alleged that their right to peaceful enjoyment of their property was violated as they had been prevented from returning to their villages and using their possessions.

THE LAW

A.  Complaints under Article 8 of the Convention and 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 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 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.

C.  Complaints under Article 6 of the Convention

The applicants further complained that their rights guaranteed under Article 6 of the Convention had been breached on account of the refusal of the authorities to allow them to gain access to their 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 applicants 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

Decides to join the applications;

Declares the applications inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

MEHMET AYDIN AND OTHERS v. TURKEY DECISION


MEHMET AYDIN AND OTHERS v. TURKEY DECISION