FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33238/96 by Zeliha KESER 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. Nielsen , Deputy 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants whose names appear in appendix are Turkish nationals. They were all living in Cevizlidere , a village in the district of Ovacık ( Tunceli ) at the time of the events giving rise to the application. They are represented before the Court by Mr Özcan Kılıç and Mr Mehmet 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

The applicants lived in Cevizlidere , a village of the Ovacık district in Tunceli , which at that time 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, including a large number of soldiers, surrounded the village and gathered the residents in the village square. They said that the village was to be evacuated at once and there was no possibility of their return. The applicants took whatever they were able to carry with them and left the village. Immediately after the evacuation, the soldiers set the houses on fire.

Some of the applicants moved temporarily into a pre-fabricated State Disaster Housing Complex near Ovacık , while others went to the neighbouring villages.

On 5 October 1994 the applicants complained about the incident to the public prosecutor in Ovacık . As their allegations concerned members of the security forces who are civil servants, the Ovacık public prosecutor sent the file to the District Governor in Ovacık , in accordance with the Law on the Prosecution of Civil Servants.

The District Governor asked the Ovacık Gendarmes Headquarters for information about the alleged incident. On 1 November 1994 he was informed by letter that no houses had been burned by the gendarmes during this operation.

On 25 November 1995 the District Governor informed the applicants that, according to the Law on the Prosecution of Civil Servants, no investigation could be initiated as the individuals involved in the incident were unidentified. He referred to the letter of the Ovacık Gendarmes Headquarters and pointed out the established case-law of the Supreme Administrative Court ( Danıştay ) according to which prior determination of the identities of accused civil servants is required before an investigation can be initiated against them.

The District Governor was also unable to determine the new addresses of all the applicants. On 15 February 1996 the decision of the District Governor was served on the former mayor ( muhtar ) of the (evacuated) Cevizlidere village.

2. Government’s version of the facts

a) Background to the case

At the beginning of October 1993 members of the PKK started to approach villages in Ovacık , engaging in propaganda for the PKK and kidnapping young men, forcing them to join the organisation. However, as some of these young men later fled and the villagers refused to provide food and supplies, the PKK began to threaten and harass the villagers. Most of the villagers left their villages in the following days since they were afraid.

b) Particular circumstances of the case

In October 1994 the PKK members, disguised as security forces in uniforms, attacked Cevizlidere and plundered and burned the villagers’ houses and harvest.

Following this incident and pressurised by the terrorists, the applicants, together with sixty-one other villagers from Cevizlidere , 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 issued a decision of non-jurisdiction and referred the case to the Ovacık Administrative Council.

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

On 17 October 1994 the Ovacık Central Gendarmes Station Commander took a statement from the muhtar of Çat village, Mr Rahmi Kızılçayır , who stated the following:

“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 Maksu Şanlı from Gözeler village 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 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 the light 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 any 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 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 home 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

A. Government’s preliminary objection

The Government submit 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 provisions 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 and, therefore, it 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 referred to 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 are the security forces. The applicants maintained that the Government failed to provide any example of a judgment in which a 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 others who were not 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 had 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 an effective investigation by the authorities into their complaints the applicants were not requi red 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, therefore, they 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

Appendix

List of Applicants:

1) Zeliha Keser

2) Kerem Keser

3) Mehmet LeylekoÄŸlu

4) Nurali Çılgın

5) Emirali Çılgın

6) Saycan Keskin

7) Emirali Keskin

8) Hüseyin Güloğlu

9) Diyap Çılgın

10) Paşa Çılgın

11) Pirsultan Emre

12) Musa Cila

13) Seyda Cila

14) Haydar Çılgın

15) Halim Çılgın

16) Teslim Keser

17) Veysel LeylekoÄŸlu

18) Beze Keser

19) Gazi Keskin

20) Mustafa Rakıp

21) Sultan Çılgın

22) Cemal CÄ°LA