AS TO THE ADMISSIBILITY OF
Applications nos. 61/02, 63/02, 67/02, 68/02, 70/02, 72/02, 75/02, 83/02, 89/02, 90/02, 92/02, 116/02, 120/02, 132/02, 135/02, 137/02, 139/02, 143/02, 145/02, 147/02, 150/02, 151/02, 153/02, 155/02, 156/02, 157/02, 158/02, 159/02, 160/02, 161/02, 162/02, 163/02, 164/02, 166/02, 167/02, 168/02, 171/02, 174/02, 181/02, 183/02, 200/02, 204/02, 206/02, 211/02, 213/02, 217/02 and 220/02
by Cebar LALE 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 on 28 September 2001,
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, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Mahmut Vefa and Mr A. Kadir Güleç, lawyers practising in Diyarbakır.
A. The circumstances of the cases
The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The applicants’ version of the facts
Until 1994 the applicants all lived in Yorulmaz village, in the district of Lice in Diyarbakır province, where they own property.
In May 1994 security forces forcibly evacuated Yorulmaz on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live.
On unspecified dates, the applicants petitioned the offices of the Governor of the state-of-emergency region, the Diyarbakır Governor, the Lice District Governor and military authorities in the region and requested them to provide compensation for the damage they had suffered and to issue permission for a return to their village. It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
On 16 May 1997 the mayor of Yorulmaz village, Mr Kazım Yalçıner, filed a petition with the office of the Governor of the state-of-emergency region and asked the latter authority to allow the residents of the village to cultivate their lands for five months.
On 30 May 1997 the Diyarbakır Provincial Gendarmerie Commander sent a letter in reply to the mayor and refused his request. This letter was served on the mayor on 16 June 1997.
On 9 September 2001 the District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in Lice and informed them that access to some villages of Lice would only be possible during daytime in summer. The letter further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. The applicants’ village, Yorulmaz, was not listed among the villages to which access would be allowed under aforementioned conditions.
On 11 September 2001 2 nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course of the operations.
On unspecified dates, the applicants filed petitions with the offices of the Diyarbakır Governor, the Lice District Governor and the President of the Republic requesting compensation for the damage they had suffered and seeking permission to return to their village. However, they did not receive any response to their petitions. It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
On 3 October 2001 sixty-three applicants lodged petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses and forced evacuation of their village by State security forces.
2. The Government’s version of the facts
The investigation carried out by the authorities indicated that the applicants had left their villages on 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, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
The applicants alleged that their rights guaranteed under Article 6 of the Convention had been violated since they had forcibly evicted from their village by the security forces.
They alleged under Article 8 of the Convention that their right to respect for their family life and home had been violated since they were unable to return to their village.
They contended under Article 1 of Protocol No. 1 that they had been deprived of their right to peaceful enjoyment of their possessions since the security forces had destroyed their houses and they had not been allowed to return to their village.
The applicants complained under Article 13 of the Convention that there were no effective remedies in domestic law in respect of their Convention grievances.
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, destruction of property 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.
B. Complaint under Article 13 of the Convention
The applicants complained that there was no effective domestic remedy capable of providing redress for their Convention grievances. 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 Government disputed the above allegations, arguing that there were effective domestic remedies of which the applicants had failed to avail themselves.
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 forced displacement, destruction of property and denial of access to their 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. Complaint 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
A P P E N D I X
List of Applicants
1) 61/02 Cebar Lale, Muhittin Lale and Tarık Lale
2) 63/02 Mahmut Demir and Eşref Demir
3) 67/02 Ahmet Nergiz, İhsan Nergiz and Yaşar Nergiz
4) 68/02 Fadli Yalçıner and Celal Yalçıner
5) 70/02 Resul Koç, Semet Koç and Behçet Koç
6) 72/02 Saim Yalçıner, Meryem Yalçıner, Bilgin Yalçıner
and Zahit Yalçıner
7) 75/02 Musa Erik, Semet Erik and Hasan Erik
8) 83/02 Ramazan Erik and Mahmut Erik
9) 89/02 Abdulvasih Nergiz, Remezan Nergiz and
10) 90/02 Evliya Yalçıner and Sara Yalçıner
11) 92/02 Mehmet Yuva, Salih Yuva and Üzeyir Yuva
12) 116/02 Sadife Demir and Fadli Demir
13) 120/02 Teyyip Demir, Mehmet Demir, Yahya Demir
and Kazım Demir
14) 132/02 Arif Yıltaş, Mehmet Yıltaş and Fadli Yıltaş
15) 135/02 Salih Dere, Ekrem Dere and Naif Dere
16) 137/02 Sait Erik and Abdullah Erik
17) 139/02 Hasan Yurtan, Hilmi Yıltaş and Kadri Yıltaş
18) 143/02 Recep Yalçıner, Sait Yalçıner, Remezan Yalçiner and Zahir Yalçıner
19) 145/02 Mahmut Koç, Ali Koç and Sibetullah Koç
20) 147/02 Fevzi Yıltaş, Nesrettin Korkut and Yılmaz Lale
21) 150/02 Sabri Erik, Nezir Erik and M. Şirin Erik
22) 151/02 Ramazan Koç, Halit Koç and Hüseyin Koç
23) 153/02 Feyzullah Yamaç, Aydın Erdoğan and Salhaddin Erdoğan
24) 155/02 Adil Teke, Zerife Teke and Abdullah Teke
25) 156/02 Hasan Demir, Yaşar Demir, Adnan Demir and
26) 157/02 Cevdet Erik and Raif Erik
27) 158/02 Mehmet Teke and Cezayir Tabay
28) 159/02 Behçet Yalçıner and Hava Yalçıner
29) 160/02 Hasan Teke, Şeref Teke and Ali Yuva
30) 161/02 Talat Yüce, Rıfat Yüce, Muzaffer Yüce and
31) 162/02 Kadri Koç and Sabri Koç
32) 163/02 Mahfuz Nergiz, Şaban Yamaç and Sinan Yamaç
33) 164/02 M. Can Koç, Şemdin Koç and Sinan Koç
34) 166/02 Halef Akyücel, Cevdet Yüce and Mehmet Yüce
35) 167/02 Abdullah Yurtan and Hüseyin Yurtan
36) 168/02 Arif Erten, Ayhan Erten and Kemal Erten
37) 171/02 Ramazan Dere, Salih Dere, Avni Dere and
38) 174/02 Ramazan Erten, Fehmi Erten and Sait Lale
39) 181/02 Kemal Erik and Cevdet Erik
40) 183/02 Sabri Dere, Kemal Erdoğan and Mahmut Dere
41) 200/02 Seyran Yalçıner and Avni Yalçıner
42) 204/02 Alican Yalçıner, M.Can Yalçıner and Ziya Yalçıner
43) 206/02 TahsinYurtan and Muhyettin Yurtan
44) 211/02 Mehmet Dere, Bayram Dere and Cemil Dere
45) 213/02 Mehmet Nergiz, Mehmet Narin and Adil Nergiz
46) 217/02 Metin Dere, Ahmet Dere and Mehmet Koç (1967)
47) 220/02 Mehmet Koç (1937), Mehmet Koç (1958) and
LALE AND OTHERS v. TURKEY DECISION
LALE AND OTHERS v. TURKEY DECISION