THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 9853/02, 10248/02, 13057/02, 13910/02 and 22578/02 
by Yemlihan ÇİÇEK 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 2001 and 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, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Fethi Gümüş and Mr Zülfü Dündar, lawyers practising in Diyarbakır.

A.  The circumstances of the case

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1.  The applicants’ version of the facts

Until 1995 the applicants all lived in Tuzla village, in the district of Lice in the Diyarbakır province, where they own property. It is to be noted that Ali Kivilik, Muhittin Yıldız, Nusret, Müslime and İlhan Kaya did not submit any certificate to the Court attesting their ownership of the property in Tuzla.

In November 1995 security forces forcibly evacuated Tuzla on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır and Istanbul where they currently live.

On 23 November 1995 the mayor of Tuzla, Ağa Yıldız, filed a petition with the office of the state-of-emergency region Governor and asked the latter either to allow the residents to return to their village or to provide them alternative residences.

On 8 December 1995 the Governor of the state-of-emergency region sent a letter to the mayor and informed him that there was no legal ground for his alternative residences request. He further informed that Ağa Yıldız’s request for financial aid would be referred to the District Collaboration and Solidarity Foundation (İlçe Sosyal Yardımlaşma ve Dayanışma Vakfı).

On an unspecified date, some of the applicants filed petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses by security forces.

On 8 December 1995 the Public Prosecutor issued decisions of non-jurisdiction and sent the case-files to the Public Prosecutor’s office in the Diyarbakır State Security Court.

On an unspecified date, one of the residents of Tuzla, Tahsin Yıldız, filed a petition with the Human Rights Observation Committee of the Grand National Assembly of Turkey requesting permission to return to his village.

On an unspecified date, the Human Rights Observation Commission referred his petition to Ministry of the Interior.

On 25 May 2000 the Ministry of the Interior notified the Human Rights Commission that some of the villages in Lice, including Tuzla, were not secure and suitable for residence. It stated that once these villages became secure for return, the authorities would take the necessary steps.

On 15 June 2000 the President of the Human Rights Observation Commission informed Tahsin Yıldız about the content of the letter dated 25 May 2000.

On 9 September 2001 the Commander of District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The commander 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. Tuzla was not listed among the villages to which access would be allowed under aforementioned conditions.

On 23 November 2001 the applicants’ representative, Mr F Gümüş, filed a petition with the Public Prosecutor’s office attached to the Diyarbakır State Security Court requesting information on the investigation about the burning down of the applicants’ houses.

On 12 December 2001 the Public Prosecutor at the Diyarbakır State Security Court sent a reply to the applicants’ representative notifying that the investigation into the burning down of the applicants’ houses was still pending.

2. The Government’s version of the facts

The official records indicated that the inhabitants of Tuzla had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village.

Currently 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, 8 and 13 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 had been 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.

The applicants alleged under Article 13 of the Convention that they had had no effective remedy for their various Convention grievances.

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 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 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 and destruction of property as well as 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 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 complaint.

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 M. Zupančič 
 Registrar President

 

A P P E N D I X

List of Applicants

1)  9853/02  Yemlihan Çiçek, Nusret Kaya, Metin Kan,

Abdurrahman Demirbaş, Eshat Yıldız, Eshat     Yıldız, Kutbedin Kaya, Gani Demirbaş,

Ahmet Yıldız, Muhittin Yıldız, Hilmi Yıldız,     Baki Demirbaş

2)  10248/02  Fahri Yıldız, Yemlihan Yıldız,

Mehmet Yıldız, Halit Yıldız, Mahmut Akgül,     Hasan Akgül, Ali Kivilik, Selahattin Yıldız,     Zinet Yıldız, Fikri Yıldız, Hüseyin Yıldız,      Ağa Yıldız, Halit Yıldız

3)  13057/02  Mahmut Yıldız, Halit Demirbaş,       Mehmet Çiçek, Eşref Akgül, Emin Yıldız,     Ali Demirbaş, Hatip Yıldız, İlhan Kaya,     Müslime Kaya, Muhittin Yıldız,      Hikmet Kaya, Emin Demirbaş,       Mehmet Demirbaş

4)  13910/02  Ali Yıldız

5)  22578/02  Nuri Yıldız

ÇİÇEK AND OTHERS v. TURKEY DECISION


ÇİÇEK AND OTHERS v. TURKEY DECISION