THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43610/98 
by Hamdi YILDIRIM 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 22 June 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 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 with the European Commission of Human Rights on 15 December 1997,

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 Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 FACTS

The applicant, Hamdi Yıldırım, is a Turkish national who was born in 1942 and lives in the United Kingdom and in Istanbul. He was represented before the Court by Mr İmmihan Yaşar and Mr Selim Okçuoğlu, 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 applicant’s version of the facts

The applicant has been living in the United Kingdom since the early 1970’s. He owned a house in the Kalkanlı village of Bingöl. His mother lived in this house until 1984 when she too moved to the United Kingdom. Since that year the house has not been resided in. Nonetheless, the applicant continued to keep it partly furnished and to stay there in his visits from time to time.

According to what the applicant heard from his acquaintances, most villagers left the village in 1994 and 1995 because of the security forces’ pressure. In mid September 1996 the applicant went to see his house. He noticed that the roof had been removed and that some of his belongings inside were stolen. On an unspecified date, he saw some of his stolen belongings in a gendarmerie station.

On 24 and 25 September 1996 the applicant filed a petition with the Governor’s Office, the County Governor’s Office, and Public Prosecutor’s Office in Yayladere. He reported that his house had been damaged by unknown persons and that some of his belongings had been stolen. He requested to be provided with alternative housing or financial aid in order to repair his house.

In his petitions, the applicant stated that he and his family had been compelled to leave their village in 1993 for security concerns and had moved to Istanbul. He has not mentioned that he lived in the United Kingdom since the early 1970s and instead gave an Istanbul address for correspondence.

On 9 January 1997 the State of Emergency bureau of the Yayladere County Governor’s Office informed the applicant with a letter that an official investigation had revealed that he had moved to the United Kingdom many years before and that he had not left any valuables in the house. It explained that the roof had been blown away as a result of severe weather conditions and lack of proper care and maintenance. It also noted that the rest of the building stood intact. In the light of those facts and the applicable law, the County Governor’s Office concluded that the applicant was not entitled to compensation or any form of financial aid.

This decision was served to the applicant’s address in Istanbul – the same address he mentioned on his petition. Since he was allegedly in the United Kingdom at the time, he learned about this decision on 2 October 1997 when he returned to Turkey. The applicant did not challenge the decision before any administrative or judicial authority. By the time he lodged his application with the Commission, his petition to the prosecutor was pending.

2.  The Government’s version of the facts

The investigations carried out by the authorities indicated that the applicant had left his village of his own will and moved to the United Kingdom by taking all of his valuable property.

The investigations also revealed that the roof of his house was not removed but was blown away because of severe weather conditions throughout the years since he left his house unattended.

B.  Relevant domestic law

A description of the relevant domestic law can be found in the Court’s judgment of Doğan and Others v. Turkey (nos. 8803-8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).

COMPLAINTS

The applicant complained of violations of Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No.1.

The applicant complained that he and his family had been forced to emigrate as the authorities had failed to provide for acceptable living conditions in order to enable their return to their village. He argued that they had been unable to return because they would systematically be intimidated by the local security forces or compelled to serve as village guards.

He maintained that the authorities had failed to initiate an effective investigation and punish the members of the security forces who had destroyed his house and stole his belongings.

He submitted that he and his family had been denied a right to compensation for the destruction if his property.

Finally, he contended in conjunction with the above-stated complaints that he had been discriminated against on account of his ethnic origin.

THE LAW

The Government submitted that the applicant had failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention. They asserted, in the alternative, that the applicant had failed to comply with the six-month rule as required under Article 35 § 1 of the Convention and, on that account, his application should be declared inadmissible.

The Government stressed that despite his serious allegations the applicant had not availed himself of the judicial remedies in domestic law. They asserted that in order to have exhausted domestic remedies the applicant must have expressly raised before the national authorities, especially the courts, the complaints brought before the Court.

In the Government’s submission, even if it could be assumed that there was no effective remedy to be exhausted in domestic law, which they dispute, then the application should have been lodged with the Commission by 9 July 1997 at the latest. In this regard, they pointed out that the application was introduced on 15 December 1997, whereas the applicant was aware of the alleged destruction of his house in September 1996. The Government contended that even taking the Yayladere County Governor’s reply of 9 January 1997 as the beginning of the six month period, the applicant could not be considered to have complied with the six-month rule.

The applicant contended that he had not been required to pursue any further domestic remedy since any purported remedy was illusory, inadequate and ineffective. He further submitted that there was an administrative practice of failure to provide an effective remedy in those types of applications in the state-of-emergency region. Accordingly, he maintained that criminal, administrative and civil remedies relied on by the Government were ineffective.

The Court notes at the outset that the applicant has not availed himself of the domestic remedies referred to by the Government in respect of his grievances as he considers them ineffective. In this respect, the Court reiterates that in other cases regarding destruction of property cases in south-east Turkey the Court has found that applicants were not in the circumstances of those cases required under Article 35 § 1 of the Convention to pursue domestic remedies before complaining to the Convention organs (see Akdıvar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1213, § 73; Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 60). The Court would also point out that in the above-mentioned cases the applicants had all applied to the Convention organs within six months of the date of the destruction of their property.

The Court does not find it necessary to determine whether there existed such special circumstances in the present case which would dispense the applicant from the obligation to exhaust domestic remedies. Even if he is justified in not pursing domestic remedies, this does not in itself relieve him of the obligation to submit his application within six months from the date of the acts complained of.

In the instant case, the applicant was aware of the alleged destruction of his house at the latest by September 1996. His application was introduced with the Commission on 15 December 1997. It is therefore clear that the application was not lodged within six months of the date of the act in question. Even assuming that the six-month rule could be taken to run as of 9 January 1997 – the date on which the applicant’s claim for compensation was rejected by the Yayladere County Governor – the application is still time-barred.

The applicant argued that he had learned about the letter of 9 January 1997 much later, i.e., on 2 October 1997 when he returned to Istanbul. The applicant argued that he was not obliged to prove this allegation. Although he does not deny that he had no trouble in finding the letter – apparently in his mailbox – when he returned to Istanbul, he argued that it was not properly served under the applicable notification laws.

Whether or not this notification objection is valid as a matter of domestic law, it has no bearing on the calculation of the six month period stipulated by Article 35 § 1. The Court’s case law consistently indicates that where domestic remedies are not required to be exhausted for being ineffective, the six month period starts from the acts complained of (see Hazar and Others v. Turkey, (dec.) no. 62566/00, ECHR 2002-II). Even supposing that the applicant was not aware of that ineffectiveness until he applied to domestic authorities, the letter of 9 January 1997 left no doubt that his claims were doomed to failure. The letter unequivocally rejected his application by informing him that his allegations were found to be factually incorrect and groundless. Indeed, after allegedly learning about the letter in October 1997, the applicant gave a power of attorney to his representative within the same month and lodged his application two months later without applying to any further judicial authority. This fact reveals that the applicant was convinced that the letter made it clear that any domestic remedy would prove ineffective.

The question that remains for the Court to resolve is whether the applicant could be considered to have acted in good faith in not learning about the letter until October 1997. The Court notes that the applicant has not submitted any evidence to support this claim. Nonetheless, regardless of whether his claim is to be accepted as true, the Court finds that he failed to display due diligence in following up the outcome of the domestic investigation.

He filed his letters with the authorities in late September 1996. For reasons unknown to the Court, he informed them that he and his family had been living in Istanbul since 1993 and gave an Istanbul address for correspondence, despite his submission before the Court that he lived in the United Kingdom at the relevant time. When the authorities notified him of the letter of 9 January 1997 at that Istanbul address, he was allegedly in the United Kingdom. The applicant has not provided any indication as to why he did not follow up his applications or check his Istanbul mailbox in person or through third parties for almost a year following his applications. It is for these reasons that the Court finds that the applicant has not displayed due diligence in following up his applications.

It follows that the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

HAMDI YILDIRIM v. TURKEY DECISION


HAMDI YILDIRIM v. TURKEY DECISION