THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 18349/02, 18359/02, 26667/02, 32726/02 and 32906/02 by Süleyman DEM İ R 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 application s lodged in 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case s to gether,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Süleyman Demir, İsmail Aktaş, Metin Kahramanoğlu, Ali Gündoğan and Bekir Demir, are Turkish nationals. They are represented before the Court by Mr A. C. Zülfikar and Mr M. Gündoğdu, lawyers 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. 18349/02 by Süleyman Demir

Until October 1994 the applicant lived in Yukarıpeyde, a hamlet of the Ulukele village, in the Çemişgezek district of Tunceli, where he owns property.

In October 1994 security forces evacuated Yukarıpeyde within the context of military operations in the region. They also destroyed the applicant ’ s property. The applicant and his family then moved to the Tekeli village of Çemişgezek , where they currently live.

In 1995 and 2001 the applicant filed petitions with the District Governor ’ s office in Çemişgezek, Governor ’ s office in Tunceli, the State of Emergency Regional Governor ’ s Office and the Prime Minister ’ s office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit any document attesting his petitions to these offices.

On an unknown date the District Governor ’ s office in Çemişgezek sent a letter to the applicant stating that he would be given a compensation of 200,000,000 Turkish liras for his damages. When the applicant applied to the District Governor ’ s office to receive the compensation in question, the authorities refused his request on account of lack of resources. It is to be noted that the applicant did not submit any document in relation to his request of compensation and the authorities ’ reply thereto.

On 17 September 2001 the applicant filed further petitions with the Prime Minister ’ s office and the District Governor ’ s office in Çemişgezek requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered.

On 28 September 2001 he received a letter from the Prime Minister ’ s office informing him that his petition had been referred to the Ministry of the Interior.

On 10 October 2001 the District Governor ’ s office in Çemişgezek sent the following reply to the applicant:

“...

It was established that you voluntarily left your village following the burning down of your house. Besides, on 15 November 1995 you received 11,500,000 Turkish liras accommodation aid from the Social Aid and Solidarity Foundation.

...”

Application no. 18359/02 by Ä°smail AktaÅŸ

Until October 1994 the applicant lived in Çambulak, a village of the Ovacık district in Tunceli, where he owns property.

In October 1994 security forces evacuated Çambulak, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant ’ s property. The applicant then moved to Elazığ, where he currently lives.

In 1994 the applicant lodged a petition with the Public Prosecutor ’ s office in Ovacık complaining about the burning down of his house by the security forces. It is to be noted that the applicant did not submit any document attesting his petition with the Public Prosecutor ’ s office in Ovacık.

On unspecified dates the applicant filed several petitions with the District Governor ’ s office in Ovacık, Governor ’ s office in Tunceli and the State of Emergency Regional Governor ’ s Office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit to the Court a copy of these decisions.

On 31 October 2001 the District Governor ’ s office in Ovacık sent the following letter to the applicant in reply to his last petition:

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

Application no. 26667/02 by Metin KahramanoÄŸlu

Until October 1994 the applicant lived in Kıra, a hamlet of the Kozluca village, in the Hozat district of Tunceli, where he owns property.

In October 1994 security forces evacuated Kıra within the context of military operations in the region. They also destroyed the applicant ’ s property. Following the destruction of his property, the applicant moved to Hozat. He then moved to Elazığ, where he currently lives.

On 14 October 1994 the applicant filed petitions with the Prime Minister ’ s office, the State of Emergency Regional Governor ’ s Office and the Governor ’ s office in Tunceli requesting compensation for pecuniary and non-pecuniary damages he suffered.

On 26 January 1995 the District Governor ’ s office in Hozat rejected the applicant ’ s request, stating that he did not fulfil the conditions required by the Housing Law, no. 2510.

On an unknown date the applicant filed a further petition with the District Governor ’ s office in Hozat requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered.

On 13 September 2001 he received the following reply from the District Governor ’ s office in Hozat:

“...The Project ‘ Return to the Village and Rehabilitation in Eastern and South-eastern Anatolia ’ was developed by the South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma İdaresi Başkanlığı). It aims to provide the re-settlement of any inhabitants who unwillingly left their land due to various reasons, particularly terrorist incidents and who now intend to return to secure collective settlement units, since the number of the terrorist incidents have relatively decreased in the region. The Project also aims to create sustainable living standards in the re-settlement areas.

It was established that you had not filed a complaint against the perpetrators of the alleged incident.

...

An investigation will be initiated should you request and inform the District Governor ’ s office about the identities of the perpetrators who are responsible for your eviction from your village.”

Application no. 32726/02 by Ali Gündoğan

Until October 1994 the applicant lived in Şahverdi, a village of the Ovacık district, in Tunceli. It is to be noted that the documents attesting the ownership of the property that the applicant used in Şahverdi bear the applicant ’ s father ’ s name.

In October 1994 security forces evacuated Şahverdi, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant ’ s property. Following the destruction of his property, the applicant moved to Ovacık. He then moved to Elazığ in 1996, where he currently lives.

On 29 January 2001 the applicant filed a petition with the District Governor ’ s office in Ovacık requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village.

On 1 February 2001 the District Governor ’ s office in Ovacık sent a letter to the applicant stating that there would not be an investigation into his allegations as it was established that the offence in question had been committed by members of the PKK. He was also informed that his petition would be considered under the ‘ Return to the Village and Rehabilitation Project ’ .

On an unknown date the applicant filed a further petition with the District Governor ’ s office in Ovacık reiterating his request of permission to return to his village.

On 26 January 2002 the State of Emergency Unit of the District Governor ’ s office in Ovacık sent the following letter in reply to the applicant:

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

Application no. 32906/02 by Bekir Demir

Until October 1994 the applicant lived in Çambulak, a village of the Ovacık district in Tunceli, where he owns property.

In October 1994 security forces evacuated Çambulak holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant ’ s property. The applicant then moved to Elazığ, where he currently lives.

On 16 August 1996 the village mayor ( muhtar ) of Çambulak, Baki Keser petitioned the Governor ’ s office in Tunceli, the Ministry of Construction and Settlement, the State of Emergency Regional Governor ’ s Office , the Refah Party Presidency, the Prime Minister ’ s office and the Presidency of the Parliament, on behalf of the villagers. He requested compensation for their losses.

On 2 February 1999 Mr Keser 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.

On an unknown date the applicant filed a petition with the District Governor ’ s office in Ovacık requesting permission to return to his village.

On 31 October 2001 the State of Emergency of Unit of the District Governor ’ s office in Ovacık sent the following reply to the applicant:

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

On 20 February 2002 the applicant lodged a further petition with the District Governor ’ s office in Ovacık, requesting compensation for the damages he suffered and permission to return to his village.

The applicant received no response to his last petition.

2. The Government ’ s version of the facts

The investigation carried out by the authorities indicated that the a pplicants 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 DoÄŸan and Others v. Turkey (nos. 8803 ‑ 8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004- V I ).

COMPLAINTS

The applicants alleged violations of Articles 3, 5, 6, 8, 13 and 14 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 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.

The applicants 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.

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.

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

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 alleged under Article 14 of the Convention, in conjunction with the above-mentioned articles, that they had discriminated against on the basis of their ethnic origins.

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 applicant s 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 partic ular, 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 and 14 of the Convention

The applicants further complained that their rights guaranteed under Articles 5, 6 and 14 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 cir cumstances in these cases which would require it to depart from its findi ngs 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 t o join t he application s;

Declares the application s inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President