FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33239/96 by ARTUN and Others against Turkey

The European Court of Human Rights (Fourth Section), sitting on 2 September 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 5 September 1996,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ali Artun, Hıdır Sevim, Sinan Güloğlu, Zeynel Güloğlu and Mazlum Altun are Turkish nationals, who were all living at the Tepsili village in the Ovacık District of Tunceli at the time of the events giving rise to this application. By a letter dated 6 July 2001 the applicants’ lawyers informed the Court that one of the applicants, namely Ali Artun, had died on 9 August 2000 and that his heirs Selvi Artun, Kemal Artun, Kenan Artun, Ercan Artun, Nimet Artun who all live in Istanbul, wish to pursue the application. They are represented before the Court by Mr Özcan Kılıç and Mr M. Ali Kırdök, lawyers practising in Istanbul.

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

a) Background to the case

The Tepsili village in the Ovacık District of Tunceli was subject to the law on the state of emergency. Since the applicants were suspected of “aiding and abetting terrorists”, they were strictly and frequently controlled by the gendarmes stationed near the village. The gendarmes informed the applicants that they would be forced to leave the area.

b) Particular circumstances of the case

On 3 October 1994 the security forces surrounded the Tepsili village and gathered the residents in the village square. Using curse words, they told the villagers that the village would be evacuated at once with no possibility of return. The applicants took what they were able to carry with them and left the village. Immediately after the evacuation, the soldiers set the houses and the crops on fire.

Ali Artun, Mazlum Altun, Zeynel Güloğlu and Hıdır Sevim moved temporarily into a prefabricated State Disaster Housing Complex near the Ovacık District, while Sinan Güloğlu moved to the Çakmaklı village.

On the same day, following the incident, the applicants filed individual petitions with the Ovacık Public Prosecutor’s office complaining about the impugned incident. The applicants mentioned their temporary addresses as the reply address for their petitions.

Since their allegations concerned members of the security forces who were civil servants, the Ovacık Public Prosecutor issued a decision of non ‑ jurisdiction and sent the file to the Office of the District Governor in Ovacık, according to the Law on the Prosecution of Civil Servants.

The District Governor asked the Ovacık Gendarmerie Headquarters for information about the alleged incident. On 1 November 1994 he was informed by a letter that no houses had been burned by the security forces during this operation. Accordingly, the Ovacık Administrative Council issued a decision to discontinue the criminal proceedings against the gendarmes.

On 25 October 1995 the Ovacık Governor sent a letter to the applicants stating that, according to Law on the Prosecution of Civil Servants, an investigation, could be initiated only when the identities of the individuals involved in the incident were known. Moreover, the District Governor recalled the established case-law of the Supreme Administrative Court ( Danıştay ) which required prior determination of the identity of the accused civil servant before an inquiry could be initiated against him.  In this regard, it referred to the letter of the Ovacık Gendarmerie dated 1 November 1994. It therefore concluded that no investigation could be initiated, as the identities of the individuals involved in the alleged incident were unknown.

By a letter of 15 February 1996 the above-decision of the District Governor was served upon one of the applicants, namely Ali Artun, who is the former mayor (“muhtar”) of the evacuated Tepsili village. This letter further stated that as the authorities were unable to find out the new addresses of the applicants, the decision had been served on Ali Artun, who had been required to forward it to the other petitioners.

2. Government’s version of the facts

In 1994 members of the PKK started a propaganda campaign for the organisation in the villages of the Ovacık district. They kidnapped young men from these villages and forced them to join the organisation. The PKK militants issued threats against the villagers and harassed them as a result of which most of the inhabitants left their villages out of fear.

B. Relevant domestic law

A description of the relevant domestic law may be found in the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, §§ 28-43, the MenteÅŸ and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, §§ 36-51; the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, §§ 33-45; the Gündem v. Turkey judgment of 25 May 1998, Reports 1998 ‑ III, §§ 32-45; the Bilgin v. Turkey judgment of 16 November 2000, to be published in Reports of Judgments and Decisions . (see Bilgin v. Turkey , no. 23819/94, §§ 73-86, 16 November 2000)

COMPLAINTS

The applicants complain of a violation of Articles 3, 5, 6, 8, 13, 14, and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.

As to Article 3, the applicants complain that they were subjected to inhuman and degrading treatment as they were forced to leave their villages due to intimidation by the security forces and that they were insulted, threatened and accused by security forces of being terrorists.

As to Article 5, the applicants complain that they were deprived of their liberty and security of person due to the conduct of the security forces.

As to Article 6, they submit that they were not granted a right of access to a court to request compensation for the destruction of their properties.

As to Article 8, they maintain that their right to respect for their family life and homes was breached as their houses were burnt down together with their contents and they were forced to leave their villages

As to Article 13, the applicants allege that there are no effective remedies in domestic law before independent authorities in respect of their Convention grievances.

As to Article 1 of Protocol No. 1 to the Convention, the applicants complain that they were deprived of their right to peaceful enjoyment of their possessions as their houses were burnt down together with their contents and they were forced to leave their villages.

As to Article 14, in conjunction with the above-mentioned Articles, the applicants allege that they were deprived of their rights because they were Kurds.

As to Article 18, they submit that their rights under Articles 5, 6, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention were violated, that this was tolerated, that no legal measure was taken to prevent these violations and that their right to enjoy their aforesaid rights was limited contrary to Article 18.

THE LAW

The applicants complain that their alleged eviction from their village and destruction of their homes and possessions by security forces in the state of emergency region of Turkey violated their rights under Articles 3, 5, 6, 8, 13, 14, and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.

A. Government’s preliminary objections

1. Exhaustion of domestic remedies

The Government contended that the applicants failed to exhaust domestic remedies available to them within the meaning of Article 35 § 1 of the Convention.

The Government submitted that two of the applicants, namely, Hıdır Sevim and Mazlum Altun, had not filed any application with the national authorities in respect of their allegations. However, the local authorities confirmed that three other applicants had lodged petitions with the Ovacık Public Prosecutor’s office as alleged.

The Government further argued that, despite their serious allegations, the applicants had not pursued all judicial remedies in domestic law. They maintained that, according to the outcome of the investigation commenced by the public prosecutor, the perpetrators of the alleged incident were not the security forces. Thus, the applicants should have lodged another complaint with the Ovacık Public Prosecutor in order to find the real perpetrators of the incident. Given that no such request was made to the authorities, the applicants could not be considered to have exhausted all remedies available to them under domestic law.

The applicants Hıdır Sevim and Mazlum Altun claimed that they had filed petitions with the Ovacık Public Prosecutor’s office in respect of their Convention grievances. The applicants argued that they were not required to pursue any further domestic remedies since any purported remedy was illusory, inadequate and ineffective. They further submitted that, according to domestic law, public prosecutors were required to investigate ex officio into the alleged incidents in order to find the perpetrators. The applicants therefore alleged that the domestic remedies put forward by the Government were ineffective and that they had done all that could be expected of them to exhaust domestic remedies.

The Court refers to its established case-law on the exhaustion of domestic remedies rule in respect of allegations made under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 ( Akdıvar and Others v. Turke y , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 65-69, Menteş and Others v. Turkey , judgment of 28 November 1997, Reports 1997-VIII, §§ 57-58 and § 89, Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998-II, §§ 65-66, Dulaş v. Turkey no. 25801/94, §§ 43-44, 30 January 2001, unreported).

In this connection, the Court observes that following the Ovacık Public Prosecutor’s decision of non-jurisdiction, the administrative authorities of the Ovacık district commenced an investigation into the applicants’ allegations. However, it appears that they did not make any attempt to interview members of the security forces during the course of investigation, despite the fact that the applicants had clearly named gendarmes as the perpetrators of the burning of their houses and possessions. The investigation was limited to asking the Gendarmerie Headquarters to provide information about the alleged incident. Furthermore, the criminal proceedings were terminated by the Ovacık Administrative Council’s decision, following the gendarmerie authorities’ response that no houses had been burned by the security forces during the operation, and no further investigation was carried out into the applicants’ complaints.

In the light of the foregoing, the Court considers that the applicants’ allegations amounted to an arguable claim in respect of both the alleged acts and the status of the persons implicated. Given the failure by the authorities to pursue the investigation, the applicants were not requi red to pursue any further remedy in domestic law. Accordingly, the Court concludes that the application cannot be rejected for failure to exhaust all domestic remedies.

In view of this conclusion, the Court is not required to decide whether or not the applicants Hıdır Sevim and Mazlum Altun filed petitions with the Ovacık Public Prosecutor.

2. Six-month rule

The Government submitted, in the alternative, that the applicants had failed to comply with the six-month rule provided in Article 35 § 1 of the Convention. They maintained that on 15 February 1996 the decision of the District Governor had been served upon one of the applicants, namely Ali Artun, who was the former muhtar of the evacuated Tepsili village. However, the applicants introduced their applications with the European Commission of Human Rights on 5 September 1996, which was more than six months after the applicants had learned of the last decision of the domestic authorities. In this regard, the Government argued that as the applicants, except Ali Artun, had not informed the authorities of their new addresses, the District Governor was unable to inform them about the final decision concerning the investigation.

The applicants contended that the decision of the Governor had only been served upon one of the applicants. The others were informed of the decision orally by the muhtar at a later time. They further argued that their application had been lodged with the Commission on 14 August 1996. In this regard, the applicants submitted a copy of a letter dated 14 August 1996, which contained a brief summary of the facts of the present case and their complaints.

The Court notes that under Turkish law and practice a petition has to bear the actual address of the complainant in order to be received by the authorities. It must therefore be considered that the petitions filed by the applicants with the Ovacık Public Prosecutor’s office bore their actual addresses and that the authorities knew of them. Furthermore, in view of the applicants’ allegations that their houses were destroyed and that they were evicted from their village, thus moving from one place to another in pursuit of a shelter, they could not be expected to be in contact with the prosecuting authorities at all times. Accordingly, the Court accepts the applicants’ claims that they learned of the outcome of the investigation from the former muhtar at a much later time. Moreover, although the introduction date given to this application is 5 September 1996, it appears from the letter submitted by the applicants that they in fact lodged their application on 14 August 1996 and that the former date was registered as the introduction date by mistake. The Court will accordingly consider 14 August 1996 as the introduction date of the present application.

In view of these considerations, the Court dismisses the Government’s objection that the application was lodged out of time.

B. Merits

As regards the substance of the applicants’ complaints, the Government contended that the perpetrators of the alleged incidents were terrorists and that, therefore, they could not be held responsible for the impugned events allegedly giving rise to a violation of Articles 3, 5, 8 and Article 1 of Protocol No.1 to the Convention.

The applicants maintained their account of events and alleged that security forces had burned down their property and had evicted them from their village.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible.

Michael O’Boyle Nicolas Bratza Registrar President