FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31849/96 by Şevket İŞÇİ against Turkey

The European Court of Human Rights (First Section), sitting on 20 March 2001 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , Mr F. Gölcüklü , juge ad hoc,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 April 1996 and registered on 12 June 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1946 and living in Istanbul. He is represented before the Court by Mrs Bedia Buran , Mrs Filiz Köstak and Mrs Naciye Kaplan, 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. Applicant’s version of the facts

In early 1994 the applicant went to Istanbul in order to work. His family stayed in the Nurettin village of the Malazgirt district in the province of MuÅŸ .

In May 1994 the applicant’s relatives living in the Nurettin village phoned the applicant and told him that his family had moved to the Malazgirt district since his village had been burned down.

The applicant left Istanbul for Malazgirt in order to see his family. His wife told the applicant that they had not been given sufficient time to remove their belongings before the burning of their house by village guards.

The day after his arrival in Malazgirt , the applicant went to his village. He saw that his house, along with some 100 houses in the village, had been burned down. His relatives in the village told him that the village guards had taken the chairs and tables in his coffee-house as well as the goods in his shop. The applicant learned that some of his tables and chairs were still in a village guard’s, Müfit Polat’s house and shop.

After having spent the overnight in the village, the applicant went to the Malazgirt District Gendarme Command, where he talked to a gendarme captain on duty. He asked the captain the reason for the burning of his village. The captain told the applicant that he had not heard anything about the alleged burning of the village. He added that the village head guard, Ahmet Çelik , might have been responsible for the burning. The captain then summoned Ahmet Çelik to the Gendarme Command.

The applicant asked Ahmet Çelik why he had set his house, coffee-house and shop on fire. The latter told the applicant and the captain that he and his fellow village guards had burned the houses in the village on account of its inhabitants’ refusal to be village guards and their support to the PKK . Ahmet Çelik threatened the applicant telling him that his life would be in danger in Malazgirt if he did not agree to be a village guard.

Ten days after this meeting, the applicant was at a café in Malazgirt along with his nephew and son-in-law. Two village guards, Bahattin Polat and Nizamettin Çelik , and 4 police officers came to the café and took them to the Malazgirt police station, where they requested the applicant to agree to be a village guard. They were released on the same day subsequent to the questioning of the applicant’s nephew and son-in-law by the police officers.

Two months later, the applicant went to his village along with his wife and mother in order to collect his crops. The village guards stopped the applicant at the entrance of the village and told him that he had nothing left in the village. The applicant then returned to Malazgirt . He learned that his crops had been collected by the village guards and had been sold in the province of Van.

During his stay in Malazgirt , the village guards and special team members of the security forces in the region intimidated the applicant. The applicant then rented his house in Malazgirt to his elder sister and moved to Istanbul along with 14 members of his family.

Following the applicant’s departure from Malazgirt , the village guards threatened his elder sister with killing her son if she did not leave the applicant’s house.

In September 1995 the applicant’s elder sister was forcibly evicted from the house by the village head guard, Ahmet Çelik . The applicant sold his house to H.A. and took his car in exchange for the house. But, the applicant returned the car to H.A. since the village guards did not allow the latter to enter the house.

On 18 July and 29 September 1995 the applicant filed petitions with the Chief Public Prosecutor’s office in Istanbul for submission to the Malazgirt Chief Public Prosecutor’s office. He complained of the destruction of his property and the seizure of his house in Malazgirt by the village guards. He requested that his damage be redressed and that those responsible for the impugned events be brought to justice.

2. Government’s version of the facts

The authorities began an investigation into the alleged events on receipt of the applicant’s petitions.

On 20 and 21 November 1995 the Malazgirt K. Kuran Gendarme Station Commander, Mustafa Akgün , took statements from 9 village guards from the Nurettin village. The village guards denied the applicant’s allegations. They stated that the applicant had left the village with his own will since he had been involved in the PKK . They maintained that the applicant had removed his belongings before his departure and that nobody had destroyed or seized his property. The village head-guard, Ahmet Çelik , stated also that neither him nor his guards would give any damage to the applicant since he is married to his elder sister. Ahmet Çelik stated also that they are close relatives with the applicant.

On 21 November 1995 the Malazgirt Public Prosecutor questioned 7 village guards in relation to the applicant’s allegations. The village guards denied the allegations. They alleged that the applicant had been aiding and sheltering PKK militants and that he had left the village since security forces would arrest him. They claimed that the applicant’s fields were unused and nobody had destroyed or seized his property.

On 4 March 1996 the Malazgirt Chief Public Prosecutor filed an indictment with the Malazgirt Criminal Court charging 10 village guards with the destruction of the applicant’s property and the seizure of his house and belongings.

On 10 July 1996 the Küçükçekmece Criminal Court in Istanbul heard evidence from the applicant at the request of the Malazgirt Criminal Court. The applicant stated before the court that he had a house, a coffee-house and fields in the village which had been seized by the village guards. He alleged that his tenants had been forcibly evicted from his house by the village guards. He requested the court to ensure that his property be returned to him from the accused village guards.

According to the Government’s letter of 27 November 2000, the criminal proceedings against the village guards are still pending before the Malazgirt Criminal Court.

B. Relevant domestic law and practice

A full description of the relevant domestic law may be found in the Menteş and Others v. Turkey judgment of 28 November 1997, Reports of Judgments and Decisions 1997-VIII, p. 2702, §§ 36-51).

COMPLAINTS

The applicant alleges violations of Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol no. 1 to the Convention.

The applicant contends under Article 1 of Protocol no. 1 to the Convention that he was deprived of his right to peaceful enjoyment of his property on account of the burning of his house and the seizure of his property by the village guards.

He complains under Article 3 of the Convention that he and his fellow villagers were subjected to collective punishment since they were forcibly evicted from their village.

He submits under Article 5 of the Convention that he and his family, along with 100 other families, were deprived of their security on the ground that they were forcibly evicted from their village by the security forces.

The applicant maintains under Article 6 of the Convention that he is unable to claim a remedy for the violations he had suffered on account of lack of sufficient investigation into his allegations.

The applicant asserts under Article 8 of the Convention that his right to respect for his family life was breached as he and his family were forcibly evicted from their village and his property was destroyed by the village guards.

He contends under Article 13 of the Convention that there are no effective remedies in domestic law against the misconduct of the security forces in the state of emergency region.

The applicant complains under Article 14, in conjunction with the above ‑ mentioned Articles, that he was a victim of a practice of violation of Article 14 on account of his Kurdish origin.

THE LAW

The applicant com plains of the burning of his house and the seizure of his property by the village guar ds. He invokes Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol no. 1 to the Convention.

A. Government’s preliminary objection

The Government submit that the appli cant should await the outcome of the criminal proceedings pending against the village guards before the Malazgirt Criminal Court. In this regard, the Government contend that the applicant failed to exhaust domestic remedies. They maintain, in the alternative, that the applicant has also failed to observe the six-month rule.

In sum, the Government submit that the application should be declared inadmissible on account of the applicant’s failure to comply with the requirements of Article 35 § 1 of the Convention.

The applicant contests the Government’s submissions. He asserts that he filed petitions with the judicial authorities concerning his complaints with a view to exhausting domestic remedies. The applicant points out that the criminal proceedings brought against the village guards are still pending before the Criminal Court and that nobody was convicted yet. In his opinion, the remedies in domestic law are ineffective on account of the authorities’ reluctance to investigate allegations concerning destruction of property by security forces. In this connection, the applicant submits that the Government’s preliminary objections should be rejected.

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 the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996 ‑ IV, pp. 1210 ‑ 11, §§ 65-69, and the MenteÅŸ 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).

In this connection, the Court notes that the national authorities have, in fact, begun an investigation into the applicant’s complaints. They took statements from the village guards who had allegedly been involved in the impugned incidents. The Chief Public Prosecutor of Malazgirt charged the village guards with the burning of the applicant’s house and the seizure of his property. However, almost seven years elapsed since the burning of the applicant’s house; and again nearly five years elapsed since the village guards were indicted. The criminal proceedings are still pending before the Criminal Court despite the fact that the village guards accused by the applicant were identified.

In the Court’s opinion, 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 MenteÅŸ and Others judgment , p. 2715, § 89; the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996 ‑ VI, p. 2287, § 98; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 330, § 107). 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 2, 3 and 8 of the Convention or Article 1 of Protocol No. 1 thereto, the State’s obligation to pursue those guilty of such serious breaches might thereby disappear. In the Court’s view, the applicant’s complaints amounted to an arguable claim in respect of both the alleged acts and the status of the persons implicated.

Having regard to the seriousness of the applicant’s allegations and the length of time which had elapsed since the events took place, the Court considers that the authorities had not taken all the positive measures required in the circumstances of the case to bring the investigation to a rapid conclusion. Accordingly, there was no requirement for the applicant to await the outcome of the criminal proceedings before the Malazgirt Criminal Court.

In so far as the Government argue that the applicant has failed to observe the six-month rule, the Court notes that the criminal investigation into the applicant’s complaints are still pending and there is no final decision yet. In these circumstances, the Court considers that the application has been brought within the time-limit in compliance with Article 35 § 1 of the Convention.

In the light of the foregoing, the Court concludes that the Government’s preliminary objections must be dismissed.

B. Merits

As regards the substance of the applicant’s 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, t he Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Elisab eth Palm Registrar President