FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33247/96 by Abbas ÖZTOPRAK 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 deliberated, decides as follows:

THE FACTS

The applicants, Abbas Öztoprak, Mehmet Öztoprak and Şahin Toprak are Turkish nationals, who were all living at the Halitpınar village in the Ovacık District of Tunceli at the time of the events giving rise to this 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 Halitpınar 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 4 October 1994 the security forces surrounded the Halitpınar 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.

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

Following the incident, the applicants filed individual petitions with the Ovacık Public Prosecutor’s office complaining about the impugned incident. (In the application form the date on which the applicants lodged their complaint with the Public Prosecutor appears as 3 October 1994 which is before the alleged incident). The applicants mentioned their temporary addresses as the reply address for their petitions.

As 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 wrote 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.

The applicants never received this letter. They were informed about the Ovacık Public Prosecutor’s decision of non-jurisdiction and the Ovacık Administrative Council’s decision not to initiate an investigation by the other villagers, who received an official notification in this regard on 15 February 1996.

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 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 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 burned 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 burned 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

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 argued that, despite their serious allegations, the applicants did not pursue all the 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. At this point the applicants should have lodged another complaint with the Ovacık Public Prosecutor in order to find the real perpetrators of the incident. They contended that since they did not file such a request with the authorities, they could not be considered to have exhausted all domestic remedies available to them under domestic law.

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 contended that according to domestic law public prosecutors were expected to investigate ex officio into the alleged incidents in order to find the perpetrators. They therefore alleged that the domestic remedies put forward by the Government were ineffective and that they have 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.

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 as the applicants did not exhaust any domestic remedies available to them, the six-month period started to run from the date of the alleged incident. They argued that, as the applicants introduced their applications with the Commission on 5 September 1996, their applications should be rejected for failure to comply with the six ‑ month rule.

The applicants contended that the decision of the Governor was not served upon them. After they were informed of the decision at a later stage, they lodged an application with the Commission together with the other villagers. They therefore claimed that their 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 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 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 applicants did not receive any letter and were informed about it at a later stage, the Court considers that it is reasonable that the applicants were aware of the situation only after this date.

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, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President