THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37038/97 by Nuri KURT against Turkey

The European Court of Human Rights (Third Section), sitting on 12 June 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 30 May 1997,

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, Mr Nuri Kurt, is a Turkish national, who was born in 1954 and lives in Turkey. He is represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır.

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 facts

Until 1994 the applicant lived in Suçıktı , a village of the Kocaköy district in the province of Diyarbakır .

In December 1994 a mine placed on the road to Geyiksırtı , a neighbouring village of Suçıktı , exploded. Security forces from the District Gendarmerie Command in Kocaköy and village guards from the Geyiksırtı village accused the inhabitants of Suçıktı of perpetrating the explosion and requested the inhabitants of this village to leave their homes within a week. The applicant then moved to Diyarbakır where he currently lives.

On an unspecified date the applicant learned through his acquaintances that on 22 December 1995 security forces and village guards had set fire to his house, along with other houses in the village.

On 2 February 1996 the applicant lodged an application with the Governor’s office in Diyarbakır . He complained that security forces from the District Gendarmerie Command in Kocaköy and village guards from Geyiksırtı had set fire to his house, along with other houses in the village. He requested that the perpetrators of the act be prosecuted, that his damages be redressed and that the required measures be taken in order to enable him and other villagers to return to their homes.

On an unspecified date the applicant filed a petition with the Chief Public Prosecutor’s office in Diyarbakır . He requested that the security forces who had burnt his house be brought to justice.

On 1 May 1997 the Diyarbakır Chief Public Prosecutor issued a decision of lack of jurisdiction and sent the case file to the office of the Administrative Council in Diyarbakır , in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ).

On 30 May 1997 the applicant lodged his application with the European Commission of Human Rights alleging violations of Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 3 September 1997 the District Administrative Council in Kocaköy decided that the applicant’s house and other houses in the Suçıktı village had burned down as a result of a fire which had started in the Haran hamlet, attached to the village of Karaçimen , due to the burning of stubble in a field. The District Administrative Council in Kocaköy therefore concluded that no proceedings should be brought against the security forces and the village guards. It then referred the case-file to the Diyarbakır Regional Administrative Court ( B ölge İdare Mahkemesi ).

On 27 November 1997 the decision of the District Administrative Council in Kocaköy was served on the applicant.

On 1 December 1997 the applicant filed an objection with the Diyarbakır Regional Administrative Court against the Commission on Prosecution of Civil Servants ‘s decision.

On 12 December 1997 the Diyarbakır Regional Administrative Court quashed the decision of the Commission on Prosecution of Civil Servants on the ground that the investigation file was incomplete.

On an unspecified date the Commission on Prosecution of Civil Servants ( Memurin Muhakematı Komisyonu ) , after completing the investigation file, reiterated the decision of 3 December 1997 that no proceedings should be brought against the security forces and the village guards.

On 20 October 1998 the Diyarbakır Regional Administrative Court upheld the decision of the Commission on Prosecution of Civil Servants .

On 8 July 1999 the Registry of the Court sent a letter to the applicant’s representative requesting him to provide a copy of the Administrative Court’s decision.

On 20 July 1999 the applicant applied to that court’s registry for a copy of its decision of 20 October 1998. The request was rejected, the applicant being informed that he should apply to the Kocaköy District Governor’s office.

2. Government’s version of facts

In April 1994 the applicant, along with other villagers, left the Suçıktı village due to the duress and threats applied on the villagers by the PKK.

In September 1994 a fire started in Haran , a hamlet of the Karaçimen village, in Diyarbakır , due to burning of stubble in a field, which then spread to the Suçıktı village.

On 19 December 1996 the applicant lodged a petition with the Public Prosecutor’s office in Diyarbakır complaining about the burning down of his house by the security forces from the District Gendarmerie Command in Kocaköy and by village guards from the Geyiksırtı village.

On 17 March 1997 the Diyarbakır Chief Public Prosecutor issued a decision of lack of jurisdiction and sent the case file to the office of the Administrative Council in Diyarbakır , in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ).

On 16 May 1997 the Governor’s office in Diyarbakır initiated an investigation into the applicant’s allegations.

On 31 May 1997 a gendarmerie captain was appointed as the investigator by the District Gendarmerie Command in Kocaköy .

Between 6 June 1997 and 5 August 1997 the investigator took statements from the inhabitants of neighbouring villages to Suçıktı , military officers and officers from Kocaköy Fire Brigade.

In view of these statements, the investigator concluded that the houses in Suçıktı had been burned down in September 1994 as a result of a fire, which had started in the Haran hamlet, of Karaçimen , due to the burning of stubble in a field. He further noted in his report that the applicant’s house had not burned down as a consequence of the fire in question.

B. Relevant domestic law and practice

A description of the relevant domestic law and practice can be found in Aygördü and Others v. Turkey admissibility decision of the Court (no. 33323/96, 19 September 2000, unreported).

COMPLAINTS

The applicant complains of a violation of Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicant maintains under Articles 6 and 13 of the Convention that he was not granted a right of access to a court to request compensation for the destruction of his property since there are no effective remedies in domestic law before independent authorities in respect of his Convention grievances.

The applicant submits under Article 8 of the Convention that his right to respect for his family life and home was breached as his house was burned down, together with its contents and as he was forced to leave his village.

The applicant contends under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that he was discriminated against on account of his Kurdish origin.

The applicant alleges under Article 1 of Protocol No. 1 that his house was burned down by the security forces, that he was forced to leave his village and that he is not allowed to return to his village.

THE LAW

A. Exhaustion of domestic remedies

The Government argue that the applicant has failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

They contend that on 16 May 1997 the Commission on Prosecution of Civil Servants attached to the District Governor’s office in Kocaköy initiated an investigation into the applicant’s allegations. They point out that the applicant filed an application with the European Commission of Human Rights on 30 May 1997. The Government claim that the applicant should have awaited the outcome of these proceedings before lodging his complaint with the Commission.

The Government conclude that the applicant failed to do all that could be expected of him to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The applicant contends in reply that he lodged complaints with the Public Prosecutor’s office in Diyarbakır , with the Governor’s office in Diyarbakır and with the District Governor’s office in Kocaköy and that no effective investigation was initiated into his complaints. He further maintains that he applied to the authorities requesting that the perpetrators of the act be brought to justice, compensation and permission to return to his village. However, none of his requests were fulfilled. The applicant claims that he has not received any response from the authorities in relation to his request of compensation and permission to return to his village.

In sum, the applicant claims that the domestic remedies relied on by the Government are ineffective and that he has 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. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, §§ 65-69; MenteÅŸ 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; DulaÅŸ v. Turkey no. 25801/94, §§ 43-44, 30 January 2001, unreported).

The Court observes that the Diyarbakır Chief Public Prosecutor issued a decision of lack of jurisdiction more than one year after the applicant’s initial application to the authorities. Subsequent to the Diyarbakır Chief Public Prosecutor’s decision, the administrative authorities of the Kocaköy District initiated an investigation into the applicant’s allegations. The investigation in question was limited to taking statements from inhabitants of neighbouring villages to Suçıktı , two military officers and two officers from Kocaköy Fire Brigade. The Court further observes that the investigation was conducted by a gendarmerie captain who had been appointed as the investigator by the District Gendarmerie Command in Kocaköy . Moreover, the applicant claimed that he had left his village in December 1994 and that his house had burned down on 22 December 1995. It is striking that both the report of the investigator and the decision of the Administrative Council in Kocaköy attached to the District Governor’s office in Kocaköy were based on the facts and statements that concern a fire started in a neighbouring village of Suçıktı in September 1994. Nevertheless, the Court has already found in a number of cases that the investigations carried out by Administrative Councils cannot be regarded as independent since these bodies are composed of civil servants, who are hierarchically dependent on the governor, and an executive officer is linked to the security forces under investigation (see Dulaş , cited above, § 60 and Oğur v. Turkey , [GC], no. 21594/93, judgment of 20 May 1999, § 91).

The Court considers that the authorities failed to conduct a thorough and effective investigation into the applicant’s allegations. Therefore, there was no requirement for the applicant to pursue any further remedy in domestic law. Accordingly, the Court concludes that the Government’s preliminary objections must be dismissed.

B. Merits

As regards the substance of the applicants’ complaints, 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 applications 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.

Vincent Berger Georg Ress              Registrar President