FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35830/97 by İmam GÖZTOK against Turkey

The European Court of Human Rights (First Section), sitting on 6 February 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 , ad hoc judge ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 October 1996 and registered on 28 April 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 Commission’s partial decision of 18 May 1998,

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 1944 and living in Istanbul. He is represented before the Court by Mrs Ä°mmihan YaÅŸar , Mr Talat Tepe , Mr Ahmet AkkuÅŸ 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.

Until 1995 the applicant lived in the Kalkanlı village attached to the Yayladere district in the province of Bing ö l. The applicant owns a piece of land and he had a house in the village.

In 1994 and 1995 the applicant, along with other villagers, was continually intimidated by the members of the security forces called “special team”. The villagers were subjected to food rationing imposed by the military commander of the district. The village was under military control and access to the village was subject to prior permission from the special teams. Subsequently, the majority of the villagers abandoned their village due to the pressure by the security forces.

In 1995 the applicant gave the keys of his house to the commander in the village before he went to Istanbul in order to spend the winter there. The applicant said to the commander that in case the security forces wanted to conduct a search in his house they could go in. He further said to the commander not to break the windows or the door of the house had they conduct a search. While in Istanbul the applicant learnt from his neighbours that on 24 March 1995 his house had been burnt down by the security forces. The applicant returned back to his village and saw that his house and all its contents had been burnt.

The applicant was told by a commander called Ali that his house had been burnt down by the terrorists.

A villager, G.A., who had witnessed the burning of the houses in the village, told the applicant that his house, along with the other houses in the village, had been burnt with explosives installed by the security forces. The other villagers also told the applicant that only the houses of those who refused to abandon the village had been burnt down. The villagers further told the applicant that a commander called Alpay had been conducting the burning of the houses.

On 3 April 1995 the applicant filed petitions with the offices of the Kığı public prosecutor, the Yayladere District Governor, and the Governor for the state of emergency region. He stated that his house had been burnt down on 24 March 1995. He requested that an investigation be initiated about the burning of his house and asked for compensation for his losses.

On 24 April 1995 the applicant filed petitions with the offices of the Prime Minister, the Minister of Interior and the Minister of State in charge of human rights. He requested that an investigation be initiated and that the perpetrators be identified about the burning of his house. He further requested compensation for his losses. The applicant received no replies to these applications.

In a letter dated 5 May 1995 to the Yayladere Heska Villages Solidarity and Culture Association ( Yayaladere Heska K ö yleri Dayanışma , Yardımlaşma ve K ü lt ü r Derneği ) from the office of the Bing ö l Governor it was stated that the villagers form the Haktanır , Yolg ü den, S ü rmeliko ç , Kalkanlı and Aydınlar villages attached to Yayladere district had complained that in March 1995 they had been given twenty four hours by the security forces to abandon their villages.  These villagers had further complained that their houses had been burnt by the security forces and requested that an investigation be initiated into their allegations. However, some of these houses had been destroyed by the winter weather and some of them had been intentionally burnt down by the villagers in order to obtain compensation from the authorities. The houses in the Kalkanlı village had been burnt down in the clashes with the PKK. The authorities were not responsible for the damages occurred.

On 16 May 1995 the office of the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses. The applicant’s house had been burnt in the clashes between the security forces and the terrorists on 24 March 1995. The applicant had alleged that he had left the keys of his house to the commander before he went to Istanbul. However, this allegation had been unsubstantiated.

On 21 August 1995 the public prosecutor at the Diyarbakır State Security Court decided to join the two applications that were previously registered with the office of the Kığı public prosecutor and that were transferred to his office. In his decision the prosecutor noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction ( g ö revsizlik kararı ) on 2 May 1995 (decision no. 1995/25-9) concerning the clashes took place at the Kalkanlı station between the security forces and the terrorists on 24 March 1995. The prosecutor decided to register the investigation file related to this event at his office. The prosecutor further noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction ( g ö revsizlik kararı ) on 8 August 1995 (decision no. 1995/24-23) concerning the burning of the applicant’s house. The prosecutor finally decided to register the two investigation files at his office under investigation file number 1995/2006.

On 18 July 1996 the applicant filed another petition with the office of the Yayladere District Governor. In this petition the applicant stated that he left his village in 1994 and that his house had been burnt on 5 May 1995. He also asked compensation for his losses.

On 25 July 1996 the applicant filed a petition with the office of the Prime Minister. In this petition the applicant stated that his house had been burnt in the clashes in April 1995. He asked compensation for the losses he had sustained due to the destruction of his properties.

B. Relevant domestic law and practice

1. Administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts or decisions of the administration are subject to judicial review...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.

The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:

“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”

2. Criminal responsibility

The Turkish Criminal Code makes it a criminal offence:

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),

(c) to issue threats (Article 191),

(d) to make an unlawful search of an individual’s home (Articles 193 and 194),

(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),

(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or

(g) to damage another’s property intentionally (Articles 516).

For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.

If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).

If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.

3. Provisions on compensation

Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.

Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.

COMPLAINTS

The applicant complains under Article 6 of the Convention that there are no effective remedies in domestic law to enable him to obtain compensation for his losses caused by the burning of his property.

The applicant complains under Article 8 of the Convention that his right to respect for his private and family life was violated as his house was burnt together with its contents and that he was compelled to abandon his village.

The applicant complains under Article 13 of the Convention that there are no effective remedies in domestic law in respect of the matters complained of.

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

The applicant finally complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of the right to enjoy his property peacefully and freely.

THE LAW

A. The Government’s Preliminary Objections

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

The Government argue that a criminal investigation has been opened by the Diyarbakır State Security Court public prosecutor. This criminal proceeding is still pending as, so far, no final judgment has been handed down.

The Government contend that it would have been possible for the applicant to seek redress before the administrative courts under Article 125 of the Constitution and Law no. 2577. 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 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, with reference to numerous decided cases the Government demonstrated that the administrative courts had awarded compensation in many cases involving death, injury or damage to property.

The Government submit in the alternative that the applicant could also have lodged a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of the State’s agents.    

The Government further point out that, if committed, the alleged acts complained of by the applicant before the Court would indeed have been punishable under Turkish criminal law (see relevant domestic law above). Furthermore, if the acts complained of were committed by military personnel, they would be prosecuted, under Articles 86 and 87 of the Military Code, for risking human life, causing damage to property and non-compliance with the order. In this connection the applicant could have lodged complaints against the members of the security forces.  

In their submission the Government argue that the simply by addressing letters to the offices of the Prime Minister, the Minister of Interior and the Minister of State in charge of human rights the applicant cannot be considered to have exhausted domestic remedies as required by Article 35 § 1 of the Convention.

In case it would be found that the above remedies cannot be regarded as effective, the Government submit that the application has been lodged out of time in that the applicant’s house had been allegedly burned on 24 March 1995 whereas he applied to the Court on 29 September 1996, which is more than six months later.

In reply the applicant submits that he was exempt from exhausting domestic remedies due to the administrative practice of failure to provide an effective remedy for abuses carried out by the security forces and the existence of an administrative practice of destruction of villages.

The applicant argues that he does not have to avail himself of the other remedies suggested by the Government since these remedies would also have been futile.

In this regard he maintains that he filed petitions with the competent authorities, namely with the office of the Kığı public prosecutor. He points out that the authorities did not conduct an effective investigation into his allegations though they had an obligation to do so.

As to the Government’s argument that the application has been filed out of time, the applicant submits that, before applying to the European Commission of Human Rights in September 1996, he lodged several applications with the domestic authorities. On 3 April 1995 he filed petitions with the offices of the Kığı public prosecutor, the Yayladere District Governor, and the Governor for the state of emergency region.  On 18 July 1996 and on 25 July 1996 he petitioned the Yayladere District Governor and the office of the Prime Minister in relation to the lack of an effective investigation of the burning of his home. When it was clear to him that these efforts remained without effect, he decided to file an application with the European Commission of Human Rights.

The Court notes 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. However, the Court would point out that in those cases the applicants lodged their application with the Commission within six months of the date of the destruction of their villages (see the Akdıvar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1204 and 1205, § 44; the Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2704, § 52; the Sel ç uk & Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 903, § 46; the Gündem v. Turkey judgment of  25 May 1998, Reports 1998-III, p. 1127, § 46).

The Court finds that in the absence of domestic remedies the six months period runs from the acts complained of (cf. No. 19601/92, Dec 19.1.95, D.R. 80, p. 46). Special considerations would apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such situation, the six months period might be calc ulated from the time when the applicant becomes aware, or should have become aware, of these circumstances (cf. No. 23654/95, Dec. 15.5.95, D.R. 81, p. 76).

In the instant case, the applicant was aware of the destruction of his house as of March 1995. His application was introduced with the Commission on 29 September 1996. On 3 April 1995 the applicant filed petitions with the offices of the Kığı public prosecutor, the Yayladere District Governor and the Governor for the State of Emergency Region. He requested that an investigation should be initiated about the burning of his house and asked for compensation for his losses. On 16 May 1995 the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses.

The Court notes that, in the applicant’s opinion, there is no effective domestic remedy in respect of the violation of the Convention of which he complains. Against this background the Court considers that the applicant must be taken to have been aware of this following receipt of the Yayladere District Governor’s letter of 16 May 1995 rejecting the applicant’s complaint for compensation. 

It follows that the application has been lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President