FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33243/96 by Abbas ÅžAYLI 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 applicant, Abbas Şaylı, is a Turkish national, who was born in 1934 and who was living at the Otlubahçe village in the Ovacık District of Tunceli at the time of the events giving rise to this application. He is 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. Applicant’s version of the facts

a) Background to the case

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

b) Particular circumstances of the case

On 15 October 1994 the security forces surrounded the applicant’s village and gathered the residents in the village square. Using curse words, they told them that the village would be evacuated at once with no possibility of return. The applicant took what he was able to carry with him and left the village. Immediately after the evacuation, the soldiers set the houses and the crops on fire.

The applicant moved temporarily into a prefabricated State Disaster Housing Complex near the Ovacık District.

Following the incident the applicant filed a petition with the Ovacık Public Prosecutor’s office complaining about the impugned incident. It is to be noted that in the application form the date on which the applicant lodged his complaint with the Ovacık Public Prosecutor appears as 3 October 1994, which is prior to the alleged incident.

Since his 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 the District Governor was informed 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 wrote a letter to some villagers 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. The applicant did not receive this letter. He learned of the Ovacık Public Prosecutor’s decision of non-jurisdiction and the Ovacık Administrative Council’s decision from his fellow other villagers.

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 and practice

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 applicant complains 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 applicant complains that he was subjected to inhuman and degrading treatment as he was forced to leave his village due to intimidation by the security forces and he was insulted, threatened and accused by security forces of being a terrorist.

As to Article 5, the applicant complains that he was deprived of his liberty and security of person due to the conduct of the security forces.

As to Article 6, he submits that he was not granted a right of access to a court to request compensation for the destruction of his property.

As to Article 8, he maintains that his right to respect for his family life and home was breached as his house was burned down together with its contents and he was forced to leave his village.

As to Article 13, the applicant alleges that there are no effective remedies in domestic law before independent authorities in respect of his Convention grievances.

As to Article 1 of Protocol No. 1 to the Convention, the applicant complains that he was deprived of his right to peaceful enjoyment of his possessions as his house was burned down together with its content and he was forced to leave his village.

As to Article 14, in conjunction with the above-mentioned Articles, the applicant alleges that he was deprived of his rights because he is of Kurdish origin.

As to Article 18, he submits that his 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 his right to enjoy his aforesaid rights was limited contrary to Article 18.

THE LAW

The applicant complains that his alleged eviction from his village and destruction of his home and possessions by security forces in the state of emergency region of Turkey violated his 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 applicant had failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

The Government submitted that there were no applications lodged with the national authorities by the applicant.

The Government argued that, despite his serious allegations, the applicant had not pursued all judicial remedies in domestic law. They maintained that according to the outcome of the investigation initiated by the public prosecutor, the perpetrators of the alleged incident were not the security forces. Thus, when the applicant was informed about this situation, he should have lodged a complaint with the Ovacık Public Prosecutor in order to find the real perpetrators of the incident. They contended that since he had not filed such a request with the authorities, he could not be considered to have exhausted all domestic remedies available to him under domestic law.

The applicant argued that he had filed a complaint with the Ovacık Public Prosecutor’s office and that he could not be held responsible for the authorities’ failure to keep a record of all the petitions submitted to them.

The applicant also argued that he was not required to pursue any further domestic remedies since any purported remedy was illusory, inadequate and ineffective. Furthermore, he contended that, according to the domestic law, public prosecutors were required to carry out an investigation ex officio into the alleged incidents in order to find the perpetrators. He therefore alleged that the domestic remedies put forward by the Government were ineffective and that he had done all that could be expected of him 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 applicant’s 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 applicant had clearly named gendarmes as the perpetrators of the burning of his house 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 applicant’s complaints.

In the light of the foregoing, the Court considers that the applicant’s 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 applicant was not required 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 applicant filed a petition with the Ovacık Public Prosecutor’s office.

2. Six-month rule

The Government submitted, in the alternative, that the applicant had failed to comply with the six-month rule provided in Article 35 § 1 of the Convention. They maintained that as the applicant did not exhaust any domestic remedies available to him, the six-month period started to run from the date of the alleged incident. They argued that as the applicant introduced his application with the Commission on 18 September 1996, his application should be rejected for failure to comply with the six-month rule.

The applicant contended that the decision of the Governor had not been served upon him. Immediately after he learned of this decision, he lodged his application with the Commission together with the other villagers. He therefore claimed that his application could not be rejected for failure to comply with the six-month rule.

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 petition filed by the applicant with the Ovacık Public Prosecutor’s office bore his actual address and that the authorities knew of it. Furthermore, in view of the applicant’s allegations that his house was destroyed and that he was evicted from his village, thus moving from one place to another in pursuit of a shelter, he could not be expected to be in contact with the prosecuting authorities at all times. Accordingly, the Court accepts the applicant’s claim that he learned of the outcome of the investigation from the other villagers at a much later time.

The Court notes that the decision of the Ovacık Administrative Council was served on most of the villagers on 15 February 1996. As the applicant did not receive any letter and was informed about it at a later stage, the Court considers that it is reasonable that the applicant was aware of the situation only after this date.

Furthermore, the Court notes that the introduction date of the application is 5 October 1996 and not 18 September 1996 as alleged by the Government.

In the light of the above considerations the Court concludes that there is no reason to reject the application for being lodged out of time under Article 35 § 1 of the Convention.

B. Merits

As regards the substance of the applicant’s 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 applicant maintained his account of events and alleged that security forces had burned down his property and had evicted his family from his 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, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President