SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36218/97 by Mehmet TANG Ü NER and Mihti TANG Ü NER against Turkey

The European Court of Human Rights (Second Section), sitting on 5 October 2004 as a Chamber composed of:

Mr A.B. Baka , President , Mr L. Loucaides , Mr K. Jungwiert , Mrs W. Thomassen , Mr M. Ugrekhelidze , Mrs A. Mularoni , judges , Mr F. Gölcüklü , ad hoc judge , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 3 November 1995 ,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Mehmet Tangüner and Mr Mihti Tangüner , are Turkish nationals who were born in 1931 and 1939 respectively and live in Diyarbakır . They were represented before the Court by Ms A. Stock, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London .

A. The circumstances of the case

The facts of the case , as submitted by the parties, may be summarised as follows.

1. Applicants ' version of the facts

Until 25 March 1995 the applicants were living in the village of Uğrak , located within the administrative jurisdiction of the province of Diyarbakır . A feud had been going on for many years between the applicants ' family and the family of the village mayor . Members of the applicants ' family involved in the feud were regularly subjected to intimidation by the security forces. On occasions they were gathered in the village square and subjected to ill-treatment . The security forces also accused the applicants of aiding and abetting the PKK and forced them to become village guards.

As a result of the continuing abuse , the applicants left their village on 25 March 1995 and settled in Diyarbakır . T heir families and children also joined them the r e on 30 April 1995 .

On 4 May 1 9 95 the applicants learn ed from a villager, Mr Metin Biçim , that their houses were burned down by soldiers from the Kamışlı station .

On an unspecified date in May 1995 the applicants submitted a petition to the Diyarbakır provincial governor ' s office. The petition was returned to them and no action was taken by the authorities on their complaints.

On 6 May 2004 the applicants informed the Court that they returned to their village in September 2002 . They have rebuilt their houses and have started living in the UÄŸrak village.

2. Government ' s version of the facts

The Government submit in the first place that subsequent to the communication of the application on 18 May 1998 , the domestic authorities c ommenced an investigation into the applicant ' s allegations. It was established that no military operation had been conducted in the UÄŸrak village and that the village had not been evacuated. S everal families are still liv ing in the village. T h e applicants left t he village of their own free will due to financial problems and there is no evidence that their houses were destroyed by members of the security forces.

The Government further maintain that t he wooden parts of the ir houses were taken down by the applicants themselves and sold to a villager called Ramazan Yengin from the Sanlı village . The remaining parts , which were made of clay, had fallen into ruin due to bad weather.

The Government disput e the applicants ' allegations that they had been asked to become village guards and state that no pressure was ever exerted on the villagers to be come village guards. They further underlined that no PKK activity was observed in the UÄŸrak village.

The Government state that the applicants a re still the owners of their land in the UÄŸrak village and are able to cultivate i t. They finally stress that the applicants have returned to the UÄŸrak village and have been living there since September 2002 .

In support of their submissions , the Government submitted copies of statements obtained from six of the applicants ' neighbours .

Mehmet Biçim stated that:

“I have been living in the Uğrak village for 22 years. Although some villagers left due to financial problems, there are still several families liv ing in the village. Mehmet and Mihti Tangüner were among those who had left the village due to financial problems. They left the village of their own free will. Their land is not cultivated by other villagers and their houses , which are close to the mosque , are currently unoccupied. Before leaving, they sold the wooden parts of their houses to a villager called Ramazan from the Sanlı village. No military operation was carried out in our village and we were never forced to be come village guards.”

Zeydin Güçlü stated that:

“I have been living in the Uğrak village for 32 years. There are still many people liv ing in this village. In the past, some people left due to financial difficulties . H owever , there has never been any pressure on them to evacuate the village. Mihti and Mehmet Tangüner left the village of their own free will and moved to Diyarbakır . Their land is not cultivated by the other villagers. As they were encountering financial problems, they took down the wooden parts of their houses and sold them to a villager called Ramazan from the Sanlı village. There was no military operation in our village on 25 March 1995 . We have never been forced to be come village guards and there are no village guards in our village at the present time.”

Mehmet Gök stated that:

“I live in the Uğrak village. There are still many families l iving in the village. In the past, some of the villagers left the village due to financial problems. Mehmet and Mihti Tangüner left the village of their own free will . H owever , they are still cultivating their land. I know that these persons had taken down the wooden parts of their houses and sold them. Their houses were made out of clay . T herefore , over time they fe ll into ruin due to bad weather. There are no village guards in the village and we have never been forced to be come village guards. No military operation has been carried out in our village.”

Emin Güçlü stated that:

“I live in the Uğrak village and at the same time I am the village headman. In the past some villagers left due to financial problems . H owever there are still families resid ing in the village. Mehmet and Mihti Tangüner left the village due to financial difficulties and moved to Diyarbakır . However , they still cultivate their land. I know that these persons took down the wooden parts of their houses and sold them. Their houses are made of clay . T herefore over time , they fell into ruin due to bad weather. We have never been pressurised by the security forces to be come village guards and there has been no military operation in our village.”

Nezir Ayhan stated that:

“I have been living in the Uğrak village for 57 years. There are still villagers liv ing in the village. In the past, some of the villagers left of their own free will. Mehmet and Mihti Tangüner ' s land is not used by any other villager. If they return ed to the village, they would be able to cultivate their own land. Their houses are located near the mosque. They were encountering some financial problems and while they were leaving the village they took down the wooden parts of their houses and sold them to a villager called Ramazan from the Sanlı village. As the houses in our village are made of clay, their houses fell into ruin over time due to bad weather.”

Adnan Tangüner stated that:

“I lived in the Uğrak village until 1996 and currently I reside in the Bismil District. I moved to Bismil because I found a post in the Bismil Fire Brigade. Mehmet and Mihti Tangüner are my relatives. These persons moved to Diy a rbakır in 1993 of their own free will. Every year they come back to the village to cultivate their land. Their houses , which were made of clay , fell into ruin over time and the wooden parts were sold to Ramazan from the Sanlı village. We have never been pressurised by the security forces to be come village guards and , as far as I know , there are no village guards in the Uğrak village at present. No military operation was carried out in the village around 25 March 1995 .”

C OMPLAINTS

The applicants complain , under Article 3 of the Convention , that the treatment to which they were subjected by members of the security forces and their forced eviction from their village amounted to torture.

Invoking Article 5 of the Convention, the applicants submit that they were deprived of their right to security of person on account of their forced eviction from their village by members of the security forces.

The applicants allege that the impossibility of challenging the destruction of their family homes and possessions represented a denial of their right of access to court for a determination of their civil rights, within the meaning of Article 6 of the Convention.

They further allege , under Article 8 of the Convention , that their right to respect for their family life and home was violated on account of the unjustified destruction of their houses and possessions.

The applicants complain that, contrary to Article 13 of the Convention, there w ere no effective remedies to challenge the destruction of their houses.

Invoking Article 18 of the Convention, they submit that the interferences referred to above with the exercise of their Convention rights were not designed to secure permitted Convention purposes.

Finally, invoking Article 1 of Protocol No. 1 , the applicants complain that they were deprived of their right to the peaceful enjoyment of their possessions on account of the destruction of their houses and possessions by the security forces. They further complain that they were no longer allowed to make use of their land as it was now in the possession of the village headman .

THE LAW

The applicants complain of violations of Articles 3 (prohibition of torture) , 5 (right to liberty and security) , 6 (right to a fair trial) , 8 (right to respect for private and family life) , 13 (right to an effective remedy) and 18 (limitation on use of restrictions on rights) of the Convention and Article 1 of Protocol No. 1 (protection of property) in connection with the ir alleged ill-treatment and the ir forced eviction from their village, as well as the alle ged destruction of their homes.

1. As to the alleged ill-treatment of the applicants

The applicants allege under Article 3 of the Convention that they were subjected to intimidation by the security forces before they left the UÄŸrak village. They submit that they were regularly beaten and humiliated.

The Government den y these allegations. They also maintain that the applicants have failed to exhaust domestic remedies and have not lodge d their application within the six - month time- limit.

The Court notes that it is not necessary to decide whether the applicants have complied with the requirements of Article 35 § 1 of the Convention since this complaint should be rejected in any case for the following reason.

The Court observes in the first place that the applicants have not produced any concrete evidence in support of their allegations and have therefore failed to lay the basis of an arguable claim that they were ill-treated by the security forces. This part of the application should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. As to the applicants ' right to liberty and security

The applicants alleg e under Article 5 of the Convention that they were forced to abandon their homes and village in breach of the right to security of person.

The Government contend that the applicants were never deprived of their liberty and maintain that the impugned events could not give rise to a violation of Article 5 of the Convention.

The Court recalls that the primary concern of Article 5 § 1 of the Convention is protection from arbitrary deprivation of liberty by the State .

In the present case, the applicants were never arrested or detained, or otherwise deprived of their liberty. T he applicants ' insecure personal circumstances arising from the alleged loss of their homes do not fall within the notion of security of person as envisaged in Article 5 § 1 of the Convention (see Cyprus v. Turkey [GC], no. 25781/94, § 228, ECHR 2001 ‑ IV ).

In the light of the foregoing, the Court concludes that this part of the application should therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention .

3. As to the applicants ' complaint concerning their forced eviction from their village

Referring to the ir alleged forced eviction from their homes and village, the applicants invoke a breach of Articles 3, 6, 8, 13 and 18 of the Convention and Article 1 of Protocol No. 1.

The Government submit that the applicants have failed to exhaust the domestic remedies available to them within the meaning of Article 35 § 1 of the Convention. They assert, in the alternative, that the applicants have failed to comply with the six-month rule as required by Article 35 § 1 of the Convention .

The applicants maintain that they were not required to pursue any domestic remedy since any purported remedy wa s illusory, inadequate and ineffective. They submit that there is an administrative practice of failure to provide an effective remedy for abuses carried out by the security forces and an administrative practice of destruction of villages in south ‑ east Turkey .

As regards the merits of the case, the Government submit that , when the authorities learned of the applicants ' allegations , they conducted an investigation into the alleged events. The authorities found that the applicants ' house s had not been destroyed . Their wooden parts had been taken down and sold by the applicants. Furthermore, the applicants have returned to the village and are currently living there, cultivating their fields. The villagers told the gendarmes that nobody had been forced to be a village guard . Nor w ere the applicants forced by the security forces to leave the village on account of their refusal to be come village guard s . Moreover, according to the records kept by the military authorities , the security forces did not conduct any operation in the village.

The applicants dispute the Government ' s arguments. They allege that the witnesses d id not tell the truth since they fear ed persecution by the security force s . They submit that they left the village in 1995 as a result of intimidation by the security forces. Despite the fact that they have now returned to the village, t he applicants maintain their account of the events and request the Court to declare the application admissible.

The Court does not consider it necessary to decide whether the applicants may be considered to have complied with t he requirements of Article 35 § 1 of the Convention since this part of the application should be declared inadmissible as being manifestly ill-founded for the following reasons:

The Court notes that it is confronted with a dispute over t he exact nature of the alleged events. In this regard, the Court considers that it must reach its decision on the basis of the evidence submitted by the parties (see Pardo v. France , judgment of 20 September 1993, Se ries A no. 261-B, p. 31, § 28).

It observ es in the first place that the applicants maintain that they had an on - going feud with the family of the village headman . According to the applicants , as a result of this conflict they were subjected to intimidat ion by the security forces and had to leave their village. At no stage of the proceedings have the applicants referred to the conduct of a military operation in the village or the evacuation of the village as a whole.

In the Court ' s opinion, the documents produced by the applicants do not provide sufficient prima facie evidence of their version of events , whereas t he statements made by the villagers shed light on the matter . All the witnesses clearly state d that the applicants had left the village of their own free will . Many of the witnesses submit ted that the wooden parts of the house s were taken down by the applicants and sold to a villager called Ramazan from the Şanlı village. In addition, it is clear from the statements of the villagers that the applicants continued to cultivat e their land without interruption and there was nothing to prevent them from coming back to the village. The Court therefore considers that the applicants have failed to lay the basis of an arguable claim that their house s were burned or de stroyed by the security forces.

T he Court also notes that in September 2002 the applicants returned to their village and have been living there ever since.

Bearing in mind the fact that the applicants did not submit any evidence which is capable of refuting the Government ' s assertions of fact , the Court considers that the applicants have also failed to corroborate their allegation that they were forced to leave their village by the security forces because they did not agree to be come village guard s .

It follows that th ese complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 § § 3 and 4 of the Convention.

For these reaso ns, the Court, unanimously,

D eclares the application inadmissible .

S. Dollé A.B. B aka Registrar President