THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 66864/01, 66882/01, 66891/01, 66892/01, 66893/01, 66895/01, 66896/01, 73337/01, 73338/01, 73339/01, 73340/01, 73341/01, 73342/01, 73343/01, 73344/01, 73345/01, 73346/01, 73347/01, 73348/01, 73349/01, 73350/01, 73351/01, 73352/01, 73353/01, 73354/01, 73355/01, 73357/01, 73358/01, 73359/01 and 73360/01 
by Hıdır KANAR 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 2000 and 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 FACTS

The applicants, whose names appear in the appendix, are Turkish nationals, and they all live in Elazığ. They are represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ.

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. 66864/01 
by 2 inhabitants of the Şahverdi village

Until October 1994 the applicants lived in Şahverdi village in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.

In October 1994 their village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.

On 6 October 1994 one of the applicants, Hıdır Kanar lodged a petition with the District Governor’s office in Ovacık complaining about the burning of his house and belongings on the night of 4 October 1994, requesting the assessment of and compensation for this damage.

On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakemati Kanunu) and decided to send the case file to the executive committee of the Ovacık Administrative Council.

In his petition dated 29 December 1994, the applicant Hıdır Kanar complained to the Tunceli Governor and to the Ministry of Construction and Settlement that, although he lived in a building constructed for earthquake victims, he had been unable to receive government aid.

On 23 June 1995, in reply to the petition of 6 October 1994, the District Governor of Ovacık stated that the villages in the area had not been burned by members of the security forces as alleged by the villagers, but by terrorists wearing military uniform.

In November 2000 the applicant Hıdır Kanar filed a final complaint with the Governor’s and Public Prosecutor’s offices in Ovacık.

On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:

“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.

Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”

The case file does not contain any document submitted by the second applicant, Hüseyin Kanar.

Applications nos. 66882/01, 66893/0, 66895/01, 73351/01, 73353/01 
by 7 inhabitants of the Karaoğlan village

Until October 1994 the applicants all lived in Karaoğlan village, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.

In October 1994 their village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.

On 2 December 1994 one of the applicants, Mr Düzgün Yıldız, who is the village mayor (muhtar), filed a petition with the District Governor’s office in Ovacık, on behalf of the villagers, complaining about the eviction.

On 7 August 1995 he requested a loan from the Agriculture Office in Ovacık to allow the villagers to cultivate their land.

On 15 February 1996 some mayors, including Mr Yıldız, lodged a petition with the Tunceli Office for Construction and Settlement, where they complained of a reimbursement order asking the villagers to pay back government aid previously granted as compensation for their losses in the 1992 earthquake. They demanded the annulment of the reimbursement order on the ground that the villagers had lost all their property during the destruction of their villages.

On 16 August 1996 the mayors petitioned the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament. They requested compensation for their losses.

On 2 February 1999 Mr Yıldız lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission on behalf of the villagers to return to their villages.

In November 2000 the applicants filed a final complaint with the Governor and Public Prosecutor’s offices in Ovacık.

On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:

“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.

Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Applications nos. 66891/01, 66892/01, 66896/01, 73337/01, 73339/01, 73340/01, 73341/01, 73342/01, 73343/01, 73347/01, 73348/01, 73349/01, 73350/01, 73352/01, 73354/01, 73359/01, 73360/01 
by 28 inhabitants of Aktaş, Halitpınar, Doludibek and Aslıca villages

Until October 1994 the applicants lived in the above villages, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.

In October 1994 the villages were forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.

On 25 July 1995 the mayors of the above mentioned villages filed a petition with the General Directorate of Construction and Settlement in the province, demanding government aid.

On 15 February 1996 they also petitioned the Tunceli Office for Construction and Settlement, demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of March 1992, on the ground that they had lost all their property during the destruction of their villages.

On 16 August 1996 they petitioned various authorities, namely the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament. They requested compensation for their losses.

On 2 February 1999 the village mayors lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission for villagers to return to their villages.

On 22 May 1998 the mayor of Halitpınar village issued a press release along with some other villagers and representatives of some associations, denouncing the incidents that had taken place in the villages in their area.

In November 2000 the applicants filed a final complaint with the Governor’s and Public Prosecutor’s offices in Ovacık.

On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:

“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.

Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Applications nos. 73345/01, 73355/01, 73358/01 
by 3 inhabitants of the Elgazi and the Çayüstü villages

Until October 1994 the applicants lived in the above villages in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.

In October 1994 the villages were forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.

On 15 February 1996 the mayors of the above villages lodged a petition with the Tunceli Office for Construction and Settlement, demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of March 1992, on the ground that they had lost all their property during the destruction of their villages.

In 22 May 1998 the mayors, villagers and some associations issued a press release, denouncing the burning of their villages.

On 2 February 1999 the mayor of the Çayüstü village lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission for the villagers to return to their villages.

In November 2000 the applicants filed a final complaint with the Governor’s and Public Prosecutor’s office in Ovacık.

On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:

“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.

Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”

Application no. 73344/01 
by 1 inhabitant of the Kalecik village

Until October 1994 the applicant lived in Kalecik village in the district of Ovacık, in Tunceli, where he owned a house, livestock and land.

In October 1994 his village was forcibly evacuated and destroyed by security forces. The applicant and his family moved to Elazığ where they are currently living.

On 12 December 1994 the applicant petitioned the District Governor’s office complaining about the forced eviction by security forces and asked for compensation.

On 4 January 1995 the mayor of the applicant’s village sent letters to the Governor’s office in Tunceli, to the Ministry of Construction and Settlement, to the Governor’s office in the state of emergency region and to the Prime Minister’s office complaining about the impugned incident.

On 27 March 1996 the applicant sent another letter to the District Governor’s office asking for help.

On 21 November 1996 and 23 July 1997 the applicant sent petitions to the District Governor’s office and to the Ministry of Defence, respectively.

In his third letter dated 7 February 1997 addressed to the District Governor, the applicant complained about the authorities’ refusal to grant him aid.

The applicant filed two more petitions with the District Governor’s office, one dated 21 February 2000 and the other undated.

In his petition of 21 February 2000, the applicant requested permission to return to his village invoking his rights under Article 1 of Protocol No. 1 to the Convention. The District Governor, in a reply dated 5 May 2000, informed the applicant that the authorities were working on a project that would enable the villagers to return to their homes.

On 25 January 2001 the applicant received another letter from the District Governor, drawing attention to the lack of evidence which would allow the authorities to initiate an investigation into the allegation that his house in the Kalecik village had been burned down by security forces.

Application no. 73338/01 
by 2 inhabitants of the Büyükköy village

Until October 1994 the applicants lived in Büyükköy village, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.

In October 1994 the village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.

Following their eviction, the applicants, a father and his son, complained to the District Governor and to the Public Prosecutor in Ovacık.

The public prosecutor verbally rejected the applicants’ allegations that the security officers had evacuated their village however he continued with taking their statements.

In 1994 the applicants petitioned various administrative authorities, namely the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region and the Prime Minister’s office, complaining about the evacuation of their village and the refusal of the authorities to allow them to return to their homes. The applicants did not receive any reply from these authorities.

In March 2000 the applicants filed a petition with the District Governor in Ovacık. They requested permission to return to their village and compensation for their losses.

On 10 May 2000 the applicants received a letter from the District Governor in reply to their petition. The District Governor informed the applicants that their request would be considered within the context of the “Return to Villages and Rehabilitation Project”.

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).

COMPLAINTS

The applicants alleged violations of Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1.

The applicants complained that the destruction of their property amounted to inhuman and degrading treatment contrary to Article 3 of the Convention.

They submitted under Article 6 of the Convention that they had not been granted the right of access to a court to request redress for the damages they had suffered.

The applicants contended under Article 5 of the Convention that they had been deprived of their liberty and security due to the conduct of the security forces.

They complained 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.

The applicants alleged under Article 13 of the Convention that there were no effective remedies in domestic law in respect of their Convention grievances.

The applicant further complained that his rights guaranteed under Articles 14 and 18 of the Convention had been breached on account of his forced eviction from his village and the refusal of the authorities to allow him to gain access to his possessions.

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 LAW

A.  Complaints under Articles 3 and 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 Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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.  Complaints under Articles 5, 6, 14 and 18 of the Convention

The applicants further complained that their rights guaranteed under Articles 5, 6, 14 and 18 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

 

A P P E N D I X

List of Applicants

1. 66864/01 Hıdır Kanar

Hüseyin Kanar

2. 66882/01 Cafer Yıldız

3. 66892/01 Nihan Özkara

Ağa Özkara (deceased on 19 March 2005; his heirs are:     Özkan Özkara, Ali Özkara, Yıldız (Özkara) Aslan     and Kibar (Özkara)Gümüşbaş)

Teslim Özkara

Mehmet Özkara

4. 66891/01 Hıdır Ağtaş

Sabri Ağtaş

5. 66893/01 Hasan Güneş

6. 66895/01 Düzgün Yıldız

7. 66896/01 Doğan Fahri

8. 73337/01 Yusuf Özkara

Cafer Özkara

9. 73338/01 İsmail Gözaydın

 Murat Gözaydın

10. 73339/01 Mehmet Güneş

11. 73340/01 Mazlum Yeşil

Musa Yeşil

Mustafa Aktaş

12. 73341/01 Müslüm Aktaş

13. 73342/01 Teslim Toprak

Imam Toprak

Ibrahim Toprak

Ali Toprak

Hüseyin Toprak

14. 73343/01 Sefer Doğan (deceased on 5 July 2002; his heirs are:     Mehmet Doğan, Zeynel Doğan, Abdullah Doğan,     Kumru Doğan, Besi Doğan, Gönül Doğan, Sevda     (Doğan) Kılınç, Murat Doğan and Yaşar Doğan)

15. 73344/01 Hasan Doğan

16. 73345/01 Metin Aktaş

17. 73346/01 Hıdır Erenler

18. 73347/01 Mehmet Doğan

19. 73348/01 Hatice Doğan

Hüseyin Doğan

20. 73349/01 Ali Doğan (deceased on 19 July 2001; his heirs are: Altun     Doğan, Cebrail Doğan, İsmail Doğan, Düzgün Doğan    and Hüseyin Doğan)

21. 73350/01 Ibrahim Doğan

22. 73351/01 Sabri Karataş

Ali Ekber Karataş

Ali Asker Karataş

23. 73352/01 Hıdır Tokur

Ayvaz Tokur

24. 73353/01 Hüseyin Çiçek

25. 73354/01 Mehmet Yartaş

26. 73355/01 Seyit Ali Demir

27. 73357/01 Makbule Deniz

28. 73358/01 Keko Yıldız

29. 73359/01 Hasan Avcı

30. 73360/01 Süleyman Toprak

KANAR AND OTHERS v. TURKEY DECISION


KANAR AND OTHERS v. TURKEY DECISION