FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32965/96 by Hüri ÖZKANLI and Others against Turkey

The European Court of Human Rights (First Section), sitting on 15 May 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr R. Türmen , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , judges , and Mr S. Nıelsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 6 August 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Hüri Özkanlı , Kemal Özkanlı , Kenan Özkanlı (wife and sons of applicant Mahmut Özkanlı , who died on 17 May 1999), Hıdır Güleçli , Süleyman Güleçli and Eşref Coşan are Turkish nationals. They were born in 1935, 1963, 1973 1941, 1962 and 1958 respectively and live in İstanbul . They are represented before the Court by Mr Özcan Kılıç and Mr M. Ali Kırdök , lawyers practising in İstanbul .

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

Until 4 October 1994 the first three applicants lived in the village of Cevizlidere in the district of Ovacık in Tunceli . The other applicants lived in Gözeler village in the same district until 20 September 1994.

Since the 1980s security forces have continually intimidated the applicants, as the villagers were suspected of giving logistic support to terrorists. Seventeen villages in Ovacık , including the applicants’ village, were considered to be suppliers of food to terrorists in the region. The villagers’ food was as a result rationed by the Gendarmes commander of the district. The villages were under military control and access to the village was subject to prior permission from the Gendarme Headquarters in the region.

b) Particular circumstances of the case

The security forces arrived on 20 September 1994 in Gözeler and on 4 October 1994 in Cevizlidere . They assembled the inhabitants in the village square and told them to leave the village right away. They also informed the inhabitants that their houses would be set on fire. The applicants, along with others, left their village, taking their animals and as many belongings as they could carry. The security forces subsequently set Cevizlidere on fire. Gözeler was not destroyed.

On 21 September 1994, the applicants from Gözeler filed a petition with the Ovacık District Governor complaining that they had been forced to leave their village.

On 5 October 1994 the applicants from Cevizlidere lodged petitions with the public prosecutor’s office in Ovacık , complaining of intimidation by security forces and the burning down of their houses. As the case concerned an investigation into alleged acts of the security forces, the public prosecutor referred the petitions to the Ovacık District Governor in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ).

The applicants first moved to the Ziyaret village in Ovacık , where the Government provided them with public housing earmarked for disaster relief. After a while, the applicants sold their animals and belongings in order to provide for their livelihood. Finally, they moved out to live with their relatives.

On 25 October 1995 the District Governor of Ovacık replied to the applicants’ complaints by letter in which he referred to the Ovacık Gendarmerie Commander’s letter of 1 November 1994. The District Governor stated that no houses had been burnt down by the security forces and that a prosecution had not been initiated since the perpetrators could not be identified. The applicants having left their villages, the District Governor’s letters were served on the mayor ( muhtar ) of Cevizlidere on 15 February 1996.

2. Government’s version of the facts

a) Background to the case

At the beginning of October 1993 members of the PKK started to come down to the villages in Ovacık . They engaged in propaganda for the PKK and kidnapped young men in order to force them to join the organisation.

However, after a while these young men fled from the organisation. The PKK began to threaten and harass the villagers who refused to provide them with food and supplies. As a result, most of the villagers left their villages because they were afraid.

b) Particular circumstances of the case

In October 1994 PKK members disguised as security forces attacked Gözeler and burned down the villagers’ houses and destroyed the harvest. They plundered everything in the houses.

Following this incident and pressurised by the terrorists, sixty-one villagers from Cevizlidere , including the applicants, lodged a complaint with the public prosecutor’s office in Ovacık , alleging that their houses had been burned down by the security forces who had carried out military operations around their village. As the complaint concerned public officers, the public prosecutor took a decision of non-jurisdiction and referred the case to the Ovacık Administrative Council.

The Council appointed investigators in order to question the villagers about their allegations. However, since Cevizlidere had been completely evacuated on the days following the terrorist attacks, the authorities were unable to find the villagers or take statements from them. They therefore took statements from the villagers of the neighbouring villages.

On 17 October 1994 the Ovacık Central Gendarmes Station Commander took statements from Mr Rahmi Kızılçayır , the “ muhtar ” of Çat village in Ovacık . He stated:

“I am the muhtar of Çat village. (...) At the beginning of October 1994 the houses in our village were burned down by the PKK for punishment reasons. Afterwards, they went around saying that the houses had been burned down by the security forces. In burning down our houses and making our lives miserable, the terrorists had one aim only: They were scared of the security forces who had arrived in Ovacık in large numbers. They sought the villagers’ help, asking for food and trying to convince  them to join the PKK. When they did not get a positive reaction from the villagers, they burned down the houses saying ‘You wanted to leave this place anyway, so now you can go’. I talked about this event in public, in the market place of Ovacık and before the TV cameras. And now I am being harassed by the supporters of PKK. (...)”

Mr Maksut Şanlı from Gözeler stated, inter alia :

“At the beginning of October the TKP/TIKKO and PKK members began to burn down the villages in the district in retaliation for the villagers refusal to provide help, information and fighters to the organisation and, furious with the villagers’ attempts to flee the villages (...), they burned down the houses of some villagers. They sent their supporters to the city centre to spread the rumour about the security forces being the perpetrators of the incidents.”

Mr Mahmut Atlı from the Işıkvuran village stated, inter alia :

“What happened in our village happened in the neighbouring villages as well. If the PKK burned down those villages,  then they probably burned down ours as well. It was [done by] a group wearing uniforms and holding guns. The terrorists wear uniforms too. This is the reason why we left our village.”

In view of these statements, the investigators concluded that the houses in Cevizlidere had been burned down by terrorists and not by security officers. Accordingly, on 23 June 1995 the Ovacık Administrative Council decided not to initiate criminal proceedings against the security forces.

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 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 property.

As to Article 8, they maintain that their right to respect for their family life and home was breached as their houses and belongings were burned down 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 and 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

A. Government’s preliminary objection

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

They contend that it would have been possible for the applicants to seek redress before the administrative courts under Article 125 of the Constitution. They submit that the State’s liability to pay compensation could be engaged, firstly, where the agents of the State are at fault. The State can subsequently recover the compensation paid from those responsible for the harm caused. Secondly, the State cannot escape liability to pay compensation in respect of damage shown to have been caused by its agents or to have occurred in connection with the provision of security.

In this regard, the Government refer to the Malatya Administrative Court’s judgment of 8 May 1998, which concerned the burning by terrorists of the houses in the Doludere village of Bingöl . In this judgment , the court held that the administration was responsible for failure to provide for the security of the region. It, therefore, awarded compensation to forty villagers in accordance with the “social risk” theory.

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

The applicants contend that all of the judgments of the Malatya Administrative Court, as relied on by the Government, concern the destruction of villages by PKK members. However, in the present case the perpetrators of the destruction and evacuation of their houses were the security forces. The applicants maintain that the Government failed to provide any example of a judgment in which the domestic court awarded compensation for destruction of houses by members of the security forces.

They therefore allege that the domestic remedies relied on by the Government are ineffective and that they have done all that could be expected of them to exhaust domestic remedies.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against a State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. However, there is no obligation under Article 35 § 1 to have recourse to remedies which are inadequate or ineffective. In addition, according to the “generally recognised rules of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal; one such reason being the failure of the national authorities to undertake an investigation or offer assistance in response to serious allegations of misconduct or infliction of harm by State agents (see Akdıvar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210,1211, § 65-69; Menteş and Others v. Turkey , judgment of 28 November 1997, Reports 1997-VIII, p. 2706, § 57). The application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed it is essential to have regard to the particular circumstances of each case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicant or applicants (see the above-mentioned Menteş and Others judgment , p. 2707, § 58).

The Court reiterates that when an individual formulates an arguable claim in respect of destruction of property, torture or killing involving the responsibility of the State, the notion of an “effective remedy”, in the sense of Article 13 of the Convention, entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access by the complainant to the investigative procedure (see the above-mentioned Menteş and Others judgment , p. 2715, § 89). Otherwise, if an action based on the State’s strict liability were to be considered a legal action that had to be exhausted in respect of complaints under Articles 3 and 8 of the Convention or Article 1 of Protocol No. 1 thereof, the State’s obligation to pursue those guilty of such serious breaches might thereby disappear.

In this connection, the Court observes that following the Ovacık public prosecutor’s decision of non-jurisdiction, the administrative authorities of the Ovacık District started an investigation into the applicants’ allegations. However, it appears that the ensuing investigation has been limited to the taking of statements from two villagers who were not living in the applicants’ village. Moreover the authorities did not investigate the possibility that the houses might have been burned by persons other than members of the security forces.  Finally, relying on the case-law of the Supreme Administrative Court, the prosecuting authorities did not initiate criminal proceedings due to the fact that the accused State agents has not been  identified.

The Court considers that the applicants’ allegations, of which - as was clear from their petition of 5 October 1994 - the authorities were aware, amounted to an arguable claim in respect of both the alleged acts and the status of the persons implicated.

Accordingly, given the lack of effective investigation by the authorities into their complaints there was no requi rement for the applicants to pursue any further remedy in domestic law.

B. Merits

As regards the substance of the applicants’ complaints, the Government contend that the perpetrators of the alleged incidents were terrorists and they therefore cannot be held responsible for the alleged violation of Articles 3, 5, 8 and Article 1 of Protocol No.1 to the Convention.

The applicants maintain their account of events and allege that security forces burned down their houses.

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.

Søren Nielsen Christos Rozakis              Deputy Registrar President