FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33325/96 by Ali Haydar Ä°NCE and Others against Turkey

The European Court of Human Rights (First Section) , sitting on 19 September 2000 as a Chamber composed of

Mrs E. Palm, President , Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, 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 5 September 1996 and registered on 3 October 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 are Turkish national s , born in 1969, 1943 and 1950 respectively and living in Istanbul. They are represented before the Court by Mr Özcan Kılıç and Mr Mehmet Ali Kırdök , 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. Applicants’ version of the facts

Until 5 October 1994 the applicants lived in the Bilgeç village of the Ovacık district attached to the province of Tunceli . Since 1980 security forces had continually intimidated the inhabitants of the applicants’ village as they were suspected of giving logistic support to terrorists.

On 5 October 1994 security forces arrived in the applicants’ village with military carriers. They convened the inhabitants in the Village Square and told them to leave their houses. The applicants, along with their villagers, left the village taking their animals and as many belongings as they could carry. Following the eviction of the inhabitants, the security forces set the village on fire.

On the same day, 6 October 1994, the applicants filed a petition with the chief public prosecutor’s office in the Ovacık district complaining of the burning of their houses and requesting compensation for the damage they had suffered. As the case concerned an investigation of acts allegedly committed by the security forces, the public prosecutor issued a decision of non ‑ jurisdiction and referred the investigation file to the Ovacık District Governor’s office in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ). 

The applicants first moved to the Ziyaret village attached to the Ovacık district, where the Government provided them with public-sector housing designated for cases of calamity. Following their arrival, the applicants sold their animals and belongings in order to provide for their livelihood. After a certain lapse of time, they moved out to live with their relatives in Istanbul. 

On 25 October 1995 the District Governor of Ovacık wrote a letter in reply to the applicants. He stated that no house had been burned by the security forces and that no prosecution had been started since the perpetrators of the alleged acts could not be identified. The District Governor’s letter was served on the mayor of a neighbouring village ( muhtar ). The applicants allege that they were informed of the District Governor’s letter on a much later date.

2. Government’s version of the facts

Following the receipt of the applicants’ petition from the Ovacık Public Prosecutor, the District Governor initiated an investigation into the alleged acts. The District Governor assigned a police superintendent ( başkomiser ), Mr Bahri Üstüner , for the investigation.

The police superintendent submitted an investigation report to the District Governor and stated, inter alia :

“... The above mentioned complainants (the applicants), by their letters of 6 October 1994, alleged that their houses in the Bilgeç village of the Ovacık district had been burned during the operations carried out by the security forces. Subsequent to the investigation conducted by the Chief Public Prosecutor’s office and [having regard to] the reply warrant of the Gendarmerie , it was understood that the houses in question had not been burned by the security forces but by terrorists wearing military uniforms. It was further found out that following the burning of the houses the terrorists had forced [the complainants (the applicants)] to allege that their houses had been burned by the security forces. The complainants [stated] that they did not know the identities of those who had burned their houses and that they did not have any witnesses. It was established that there was no crime as alleged. Even if such an incident took place it is impossible to identify the perpetrators of the alleged acts, bearing in mind the number of military units and members of the security forces who had carried out operations in the region.”

On 23 June 1995 Ovacık District Governor’s office struck off the application concerning the investigation into the alleged burning of the applicants’ houses in view of the above-mentioned investigation report.

The authorities carried out investigation into the alleged destruction of the villages in the Tunceli province. To that end, statements were taken from several villagers. The Government provided the statements given by Mr Rahmi Kızılçayır living in the Çat village attached to the Ovacık district. Mr Rahmi Kızılçayır stated that their houses had been burned by the terrorists who wanted to punish the villagers on account of their refusal to give logistic support to the terrorists. He further stated the villagers had been forced by the terrorists to allege that their houses had been burned by the soldiers.

In the meantime, u pon their request, the applicants received monetary aid amounting to 4,000,000 Turkish liras and food from the Tunceli Governor’s office.

B. Relevant domestic law and practice

1. Administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts and 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 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 instigators 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

It is an offence under the Turkish Criminal Code

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

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

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

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

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 life 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 suspected author of a crime is an agent of the State, permission to prosecute must be obtained from a local administrative council (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. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.

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 complain under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions was breached on account of their forced eviction from their village, destruction of their house and possessions.

The applicants maintain under Article 3 of the Convention that they were subjected to inhuman and degrading treatment as well as collective punishment since they were forcibly evicted from their village and their property was destroyed.

The applicants allege under Article 5 of the Convention that they were deprived of their liberty and security on account of their forced eviction from their village.

The applicants contend under Article 6 of the Convention that they were deprived of their right of access to a court in order to assert their civil rights. They maintain that remedies in domestic law are ineffective.

The applicants submit under Article 8 of the Convention that their right to respect for their family life was violated since they were forcibly evicted from their home and village.

The applicants allege a violation of Article 13 of the Convention on account of the failure of the authorities to provide an effective remedy to enable them to challenge the destruction of their home and possessions.

The applicants complain under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that they were discriminated against on the ground of their Kurdish origin.

The applicants complain under Article 18 of the Convention that the Turkish authorities do not take any measures in order to prevent violation of their aforesaid rights.

THE LAW

The applicants complain of their forced eviction from their village and the destruction of their homes and possessions by the security forces. They invoke Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.

A. Government’s preliminary objection s

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 application should be declared inadmissible.

The Government maintain that the applicants could have availed themselves of the remedies in domestic law. In this respect, they 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. In this regard, the Government assert that the administrative courts have awarded compensation in many cases involving death, injury or damage to property. They cite by way of example the case of Maşallah Ağırtmış , who was awarded compensation by the Van Administrative Court following the burning of her house during the evacuation of her village by security forces (decision no. 1996/772 on file no. 1993/426). The Government cited also the cases of Fahriye Yılmazer (decision no. 1996/830 on file no. 1994/55) and Mahigül Nehir and Others (decision no. 1995/567 on file no. 1994/466) who were awarded compensation by the Erzurum Administrative Court on account of the destruction of their property and killing of their relative by terrorists.

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 Criminal Code, for risking human life, causing damage to property and non ‑ compliance with the orders.

In the Government’s opinion, even if it could assumed that there was no remedy to be exhausted in domestic law, which they dispute, then the application should have been lodged with the Commission within six months after the applicants had become aware of the Ovacık District Governor’s letter rejecting their allegations and request for compensation. In this respect, the Government allege that the applicants were informed of the outcome of the investigation by the Ovacık District Governor’s letter of 25 October 1995. They claim that the application should be rejected since the applicants lodged their application on 5 September 1996.

The Government conclude therefore that the applicants have not done all that could be expected of them in order to comply with the requirements of Article 35 § 1 of the Convention.

The applicants submit in reply that they tried the most effective remedy in domestic law in that they lodged criminal complaints with the public prosecutor’s office in Ovacık complaining that their houses were burned by the security forces. However, this remedy was ineffective since the public prosecutor issued a decision of non-jurisdiction and no effective investigation was carried out by the administrative authorities. The applicants claim that they were not required to pursue any further domestic remedy on account of reluctance of the authorities to investigate similar complaints and conduct of superficial investigations as well as lack of accountability of the security forces for their actions.

As regards the Government’s contention that they failed to comply with the six-month rule, the applicants contend that the Ovacık District Governor’s letter was not served on them but on the muhtar of a neighbour village since the inhabitants of their village had been evicted by the security forces. The applicants maintain that they awaited the outcome of the investigation into their complaints and that they lodged their application immediately after they had apprised of the Ovacık District Governor’s letter refusing the involvement of the security forces and their request for compensation for the damage they had suffered.

In sum, the applicants claim that they complied with the requirements of Article 35 § 1 of the Convention. They request the Court to reject the Government’s preliminary objections.

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 the 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 applicants from the obligation to exhaust the domestic remedies at their 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 of Judgments and Decisions 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).

The Court notes that the Government have referred to the above-mentioned case of MaÅŸallah Ağırtmış . In this connection, the Court observes that Mrs Ağırtmış received compensation on account of the burning of her house by security forces after the evacuation of her village. However, it is not clear whether Mrs Ağırtmış’s case concerned an intentional act on the part of the security forces, such as that alleged by the applicants, or one of negligence. In this respect, the Court does not consider that the case of Mr Ağırtmış demonstrates with sufficient certainty the existence of effective and accessible remedies for complaints such as the applicants’ (see the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998 ‑ II, p. 908, § 68). As regards the two other cases highlighted by the Government, the Court notes that the administrative court awarded compensation to the litigants, applying the “social risk theory”, on account of destruction of their property and killing of their relative by terrorists. The Court considers that the present case differs from the cases of Fahriye Yılmazer and Mahigül Nehir and Others since they concerned the acts committed by terrorists, whereas the present one concerns the alleged acts committed by the security forces.

In this connection, the Court observes that following the Ovacık Public Prosecutor’s decision of non-jurisdiction in relation to the security forces the authorities have not conducted any further investigation with a view to identifying the perpetrators of the alleged acts. It appears that none of the members of the security forces were questioned in relation to the burning of the houses in and around the Ovacık district. Nor does it appear that the authorities questioned the applicants with regard to their criminal complaints. It is to be noted that the ensuing investigation has been limited to the findings of a police superintendent who had been assigned by the District Governor to carry out the investigation into the applicants’ allegations. The Court notes that it is striking that the national authorities, such as the District Governor of Ovacık as well as other administrative authorities, remained passive in the face of serious allegations of misconduct by State agents and no one has been charged by the judicial authorities.

However, for the Court, 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; 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 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. The Court considers that the applicants’ allegations, of which - as was clear from their petition of 6 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.

In so far as the Government argues that the applicants’ complaints have been introduced out of time, the Court reiterates that where no domestic remedy is available the six months’ time-limit contained in Article 35 § 1 of the Convention in principle runs from the date of the act complained of in the application (see application no. 23413/94, decision of 28 November 1995, DR 83, p. 31).

However, special considerations could 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 a situation, the six months’ period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see application no. 23654/94, decision of 15 May 1995, DR 81, p. 76).

The Court notes that the applicants complained of the destruction of their property and evacuation of their village in their petition of 6 October 1994 addressed to the Ovacık Chief Public Prosecutor’s office. Follow ing the receipt of the investigation file from the Public Prosecutor, the District Governor of Ovacık dismissed the applicants’ allegations on the grounds that their houses had not been burned by the security forces and that the perpetrators of the alleged acts could not be identified. This decision was served on the muhtar of a neighbouring village and the applicants were apprised of it on a much later date since they were no longer living in their village. It appears therefore that the applicants lodged their application under the Convention on 5 September 1996 after having learned the Ovacık District Governor’s negative answer and beginning to doubt that an effective investigation would be initiated into their compl aints by the national authorities. In these circumstances, the Court accepts that the six months’ time-limit within the meaning of Article 35 § 1 of the Convention started to run as from 5 September 1996 at the earliest and, consequently, that the application has been brought within this time-limit.

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 applicants’ 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, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President