FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 62566/00-62577/00 and 62579-62581/00 by Osman HAZAR, Hasan and M. Selim TEKTAŞ, Ş. Mehmet, Ş. Ömer, and Muhsin BEKİROĞLU, Ramazan PEKOL, Abdülvahap BOZKUŞ, Hikmet TEKTAŞ, M. Salih ATMAN, Nihat IŞIK, Fevzi AKSUCU, Abdülhamit DOSTER, Paşa DEMİRHAN and Baran ŞAHİN against Turkey

The European Court of Human Rights, sitting on 10 January 2002 as a Chamber composed of

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

Having regard to the above applications introduced on 6 October 2000 and registered on 7 November 2000,

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 the appendix, are Turkish national s . They were living in the city of Lice at the time giving rise to these applications. Th ey are represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 October 1993, in the district of Lice, clashes occurred between security forces and PKK militants. The clashes started at around 9 a.m., just after the PKK militants had attacked the security forces. Thereafter all the policemen, the special teams and soldiers in Lice started to fire at random. The clashes lasted 36 hours. The security forces used heavy weapons, canons, tanks and 5 helicopters. As a result of the clashes 16 people died, 19 people were wounded and 424 shops and 640 houses were destroyed.

Shortly after the beginning of the clashes the soldiers ordered the inhabitants of Lice to go to their homes. All the roads in and out of Lice were sealed off during the incident for security reasons. A curfew was then imposed with immediate effect. The curfew lasted until 26 October 1993.

In the meantime, it was broadcast on radio and television that the Diyarbakır Provincial Gendarme Regiment Commander, General Bahtiyar Aydın , had been shot dead by the PKK and that 16 people had been killed, many people had been wounded and more than 400 shops and houses had been destroyed in the raid by the PKK.

After the incidents, the Lice Public Prosecutor opened an investigation into the death s of 16 people and injuries to 35 others, as well as the destruction of property in the city. The security forces prepared an incident report and drew up a sketch map of the manner in which the clashes occurred.

The Public Prosecutor found that the events of 22 October 1993 had begun at around 9 a.m. when a group of PKK terrorists, who were hiding in the vineyards on the side of the Lice- Kulp road, opened fire on a police minibus belonging to the Lice Security Directorate. Then the PKK militants, who were positioned in various central areas of Lice, opened fire with long ‑ range weapons on the Lice Security Directorate, the Gendarme Headquarters, the Infantry Regiment and public buildings. Brigadier General Bahtiyar Aydın was shot dead while he was in the Gendarme Headquarters’ garden. The clashes occurred shortly after the security forces’ response to the terrorists’ attack. The clashes were intense between 9 a.m. and 4 p.m. and ended at 7 p.m. The Public Prosecutor noted the names of the people killed or injured as well as the number of buildings destroyed during the clashes. He further noted that 20 people had been arrested after the clashes as a result of the investigation and that they had been transferred to the Chief Public Prosecutor’s Office at the Diyarbakır State Security Court.

On 24 October 1993 the Diyarbakır Governor, İbrahim Şahin , and the State of Emergency Regional Governor, Ünal Erkan , arrived in Lice. Ünal Erkan addressed the public gathering and said, “No one can oppose the State. We will crush those who do so... It is a pity for those who died.” İbrahim Şahin , the Diyarbakır Governor, made a public announcement that people would be compensated for the damage they had suffered.

The Government also considered the Lice incidents a national disaster and promised to compensate the loss sustained by the victims of Lice from the disaster fund earmarked in the annual budget.

On 11 November 1993 the Lice Public Prosecutor issued a decision of non ‑ jurisdiction on the ground that the incidents fell within the jurisdiction of the Diyarbakır State Security Court. He sent the investigation file to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court in accordance with Article 11 of Law no. 2845.

In November and December 1993 the applicants all applied to the Lice Magistrates’ Court ( sulh hukuk mahkemesi ) for an assessment of the damage they suffered as a result of the clashes. The court appointed 8 experts to determine their damage. The experts submitted damage assessment reports to the court. They concluded that 214 shops and 401 houses had been destroyed. They also indicated in their report the nature and the amount of the damage suffered by each of the applicants.

The nature of the destroyed property is set out in the appendix. The applicants preferred not to indicate to the Court the amount of their damage, as assessed at the time, due to the high inflation rates in Turkey which have distorted the original evaluations.

The criminal proceedings concerning the killing of people and the destruction of property in Lice are still pending before the Chief Public Prosecutor’s office at the Diyarbakır State Security Court.

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 .

COMPLAINTS

The applicants complain of violations of Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicants allege that their houses and shops as well as their vehicles were destroyed by the heavy weapons used in the course of the clashes between the PKK and the security forces. They submit that the security forces’ behaviour caused the destruction of their property.

2. Article 3

The applicants, referring to the destruction of their houses, shops and vehicles, maintain that they were deprived of food and that they were beaten, insulted and subjected to collective punishment which amounted to torture.

3. Article 5

The applicants contend that they were deprived of their liberty and security as a result of the clashes which gave rise to the destruction of their property and the killing of civilians.

4. Article 6

The applicants allege that they were denied any effective remedy to challenge the destruction of their property and to seek compensation. They further submit that those responsible for the destruction of their property and the killing of civilians in Lice were not brought to justice.

5. Article 8

The applicants complain that they were deprived of their right to respect for their family life and home as a result of the destruction of their homes.

6. Article 13

The applicants allege that there are no effective remedies in domestic law in respect of their various Convention grievances in view of the fact that none of the members of the security forces had been prosecuted.

7. Article 14 in conjunction with the above-mentioned Articles

The applicants claim that they were deprived of their rights as a result of discrimination on account of their Kurdish origin.

8. Article 18

The applicants contend that the restrictions on their rights and freedoms set forth in the Convention were applied for purposes which are not permitted under the Convention.

THE LAW

The applicants all complain that their property was destroyed in the course of the clashes between the PKK and the security forces as a result of which their rights guaranteed under Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention were violated.

The Government submit that the applicants failed to exhaust domestic remedies available to them within the meaning of Article 35 § 1 of the Convention. They assert, in the alternative, that the applicants failed to comply with the six-month rule as required under Article 35 § 1 of the Convention and, on that account, their applications should be declared inadmissible.

The Government assert that there exist administrative, criminal and civil law remedies in Turkish law capable of redressing the applicants’ complaints and leading to the grant of compensation.

The Government contend that it would have been possible for the applicants to seek redress before the administrative courts under Article 125 of the Constitution and Law no. 2935 and legislative Decree no. 430. Under Turkish administrative law the State’s liability to pay compensation can 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.

The Government affirmed that the administrative courts have awarded compensation in many cases involving death, injury or damage to property. In this regard, the Government submitted a judgment delivered by the Malatya Administrative Court in which the court awarded compensation to a litigant who sued the Ministry of Interior in respect of the damage he had suffered in the course of the clashes between the PKK and the security forces (decision no. 1996/583, on file no. 1995/1137).

The Government maintain in the alternative that the applicants could have also lodged a civil action for damage sustained through illegal acts or patently unlawful conduct on the part of the State’s agents. Under Turkish law the civil action does not depend on the outcome of the criminal proceedings and the procedural requirements are less strict.

The Government further point out that, if committed, the alleged acts complained of by the applicants before the Court would indeed have been punishable under Turkish criminal law. They contend in this connection that the prosecution is still pending before the Diyarbakır State Security with a view to identifying the perpetrators of the alleged crimes.

With reference to the Court’s İmam Göztok v. Turkey decision of 6 February 2001 (application no. 35830/97) the Government submit that, even if it could be assumed that there was no remedy to be exhausted in domestic law, which they dispute, then the applications should have been lodged within six months of the alleged destruction of their property. They point out that the application was introduced on 6 October 2000, whereas the applicants were aware of the alleged destruction of their house in October 1993.

The applicants allege that they were not required to pursue any further domestic remedy since any purported remedy is illusory, inadequate and ineffective. In their opinion, there is an administrative practice of failure to provide an effective remedy for abuses carried out by the security forces and an administrative practice of destruction of villages. They submit in this connection that no one was brought to justice in eight years since the Public Prosecutor at the Diyarbakır State Security Court did not carry out any effective and thorough investigation into the impugned events.

The applicants therefore maintain that criminal, administrative and civil remedies relied on by the Government are not effective.

In reply to the Government’s submissions concerning the six-month rule, the applicants allege that they waited for the outcome of the investigation carried out by the judicial authorities. In their opinion, the six-month period should start running from the date on which they became aware of the ineffectiveness of the local remedies. Thus, they claim that they lodged their applications within the required time limit.

The Court notes at the outset that, although the applicants took preliminary steps, they did not pursue the domestic remedies referred to by the Government in respect of their grievances as they considered that they were ineffective. In this respect, the Court reiterates that in other cases regarding destruction of villages in south-east Turkey the Court has found that applicants were not in the circumstances of those cases required under Article 35 § 1 of the Convention to pursue domestic remedies before complaining to the Convention organs (cf. the Akdıvar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1213, § 73; the MenteÅŸ and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 60; the Selçuk & Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 908, § 71, the Gündem v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1132, § 64). The Court underlines that in the above ‑ mentioned cases the applicants had all applied to the Convention organs within six months of the date of the destruction of their villages.

In the instant case, the Court does not find it necessary to determine whether it could be said that there existed such special circumstances in the present case which would dispense the applicants from the obligation to exhaust domestic remedies. Even if they are correct in their assertion that they had no effective remedies, this does not re lieve them of the obligation to submit their complaints to the Court within six months from the date of the acts complained of (see the Sakık and Seyrek v. Turkey decision of 29 June 1999, application no. 40076/98, unpublished).

However, special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware of the circumstances which make that remedy ineffective. In such a situation, the six months period might be calculated from the time when an applicant becomes aware, or should have become aware, of these circumstances (see the Laçin v. Turkey decision of 15 May 1995, application no. 23654/94, DR 85, p. 31).

The Court notes that the applicants were aware of the destruction of their property as of 23 October 1993. They had their damage determined by the Lice Magistrates’ Court in November 1993. However, after the latter date they have not availed themselves of any further remedy considering that it would be doomed to failure on account of the ineffectiveness of the domestic remedies.

The Court further observes that the applicants’ representative in the instant case had already submitted 201 applications as of 29 November 1994 concerning the same events which took place in Lice (247 inhabitants of Lice v. Turkey, application no. 26679/95). It was also alleged in those applications that the applicants were not obliged to exhaust any remedies in domestic law since they were ineffective. In view of these elements, the Court considers that, assuming that there were no effective remedies in the present case, both the applicants and their representative must be considered to have been aware of this situation not later than on 29 November 1994. These applications should therefore in any event have been introduced not later than six months thereafter. Since these applications were introduced on 6 October 2000, it is clear that they were not submitted to the Court within the six months’ time-limit.

Furthermore, the applicants have failed to substantiate the existence of any special circumstances which might have excused them from observing the time-limit laid down in Article 35 § 1 of the Convention.

It follows that the applications have been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the applications inadmissible.

Erik Fribergh Christos Rozakis Registrar President

APPENDIX

15 INHABITANTS OF LÄ°CE

Application no.

Applicant’s name

Applicant’s date of birth

Property destroyed

1

62566/00

Osman Hazar

1939shop

2

62567/00

Hasan TektaÅŸ

1963house

3

62568/00

M. Selim TektaÅŸ

1947house

4

62569/00

Åž. Mehmet BekiroÄŸlu

1933house

5

62570/00

Ş. Ömer Bekiroğlu

1939house

6

62571/00

Muhsin BekiroÄŸlu

1965house

7

62572/00

Ramazan Pekol

1952house+shop

8

62573/00

Abdülvahap Bozkuş

1938house

9

62574/00

Hikmet TektaÅŸ

1956house

10

62575/00

M. Salih Atman

1926house

11

62576/00

Nihat Işık

1933house

12

62577/00

Fevzi Aksucu

1935house

13

62579/00

Abdülhamit Doster

1929house+shop

14

62580/00

PaÅŸa Demirhan

1955house

15

62581/00

Baran Åžahin

1960shop