FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28292/95 by Hüseyin ATEŞ against Turkey

The European Court of Human Rights (First Section) , sitting on 30 May 2000 as a Chamber composed of

Mrs W. Thomassen, President ,

Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, 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 3 March 1995 and registered on 23 August 1995,

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 1939 and living in Hozat district of Tunceli .

He is represented before the Court by Mr Kevin Boyle and Mrs Françoise Hampson , both teachers at the University of Essex, the United Kingdom.

A. Particular 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

On 4 October 1994 military operations started in the region of Tunceli .

On 7 October 1994 military units arrived in the applicant’s village of Kozluca . The security forces surrounded the village and set up a camp around the village. The soldiers burnt the hamlets attached to the village. There was a Gendarme Station in the village and the Gendarme Station Commander collected the villagers from Kozluca in the village square. He told the villagers “Vacate your houses and leave the village. They are going to burn your houses.”

The villagers went to Hozat and hired lorries. They loaded their possessions on to the lorries and left the village. It took the applicant two days to go to Hozat , hire a lorry, gather the family belongings and move again with the family to Hozat . The applicant had to leave behind crops which he had harvested for the winter - haystacks, barley and straw as well as wood he had collected for burning. In Hozat the District Governorate put the applicant and his family in the municipal wedding saloon. Other villagers were housed in tents. After they left their village the soldiers burnt the houses.

The applicant is currently living along with nine members of his family in a room of 25 m 2 at the wedding salon belonging to the Hozat Municipality. There is no kitchen, no hot water, no central heating. The applicant has had to set up two wood-stoves in the salon. They buy the wood with their own money. There is one cauldron of water intended for bathing and laundry but it is not enough. There is one toilet for eleven families, who together total more than sixty people.

The applicant has no work at Hozat and therefore no income. The family are surviving on the money they received from the sale of their goats and sheep which they were forced to sell at a low price. The applicant cannot use his land at Kozluca which has become fallow.

On 14 November 1994 the applicant filed petitions with the Prime Minister’s office, the Tunceli Provincial Governor’s office, the State of Emergency Region Governor’s office and the Welfare and Housing Minister’s office about the destruction of his home. In his petition he stated the following:

“I am of the people of Kozluca , Hozat district. When the military operations started in our region and authorities from the Gendarme Station in our village told us, ‘vacate your houses and leave the village quickly, then we are going to burn your houses’ I loaded up my household [possessions] by necessity and came to Hozat district capital. I am temporarily staying in the Hozat wedding salon. The winter fodder I had prepared for my livestock, hay, straw, barley and everything else was left in the village. In addition, my land given [to us] in the name of my father according to the requirements of Housing law no. 2510 and Law nos. 5268 and 6093 has become fallow as I had to leave it. I have a family of 9 members. I have become an unemployed person and my financial situation is not good. I have been left homeless, without shelter or land. I have been wronged as a result of enforced migration.

I would like to receive land or a home or to benefit from the rules of Housing  Law no. 2150. I respectfully request the necessary.”

On 12 January 1995 the Deputy Governor, Mevlüt Atbaş , wrote a letter in reply to the applicant stating:

“You declare in your aforementioned petition that your house was burnt and demolished as the result of a terrorist raid and you request aid. The residences demolished as a result of terrorist raids in the centres of resettlement in question do not come under the scope of the Law o n Disasters, No. 7629 - 1051. For this reason, there is nothing that the Governorate (Welfare and Housing Directorate) can do.”

The applicant has not pursued any other domestic remedy.

2. Government’s version of the facts

In 1994 security forces took action against PKK terrorists in the province of Tunceli . On 15 August 1994, the Governor of Tunceli issued a circular with a view to controlling the transport of foodstuff in the rural areas. The PKK terrorists began to threaten and attack villages to sustain their needs. They forbade the villagers from leaving their houses. As a result of the pressure exerted by the PKK the inhabitants left their villages in order not to place their lives at risk and fled to larger settlement areas.

The applicant left his village along with other villagers and moved to Hozat . Authorities lodged him and his family in the wedding salon of the Hozat District Municipality. The applicant has received aid amounting to 30,451,000 Turkish liras between 1994 and 1996 for food, heating and health expenditures and this aid is still continuing.

On an unspecified date the inhabitants of the Kozluca village lodged criminal complaints with the Chief Public Prosecutor’s office in Hozat . They complained that their houses had been burned by the security forces in the region. 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 Hozat District Governor’s office in accordance with the Law on the Prosecution of Civil Servants ( Memurin Muhakematı Kanunu ).

The Hozat District Governor decided to discontinue the investigation on the grounds that the villagers could not identify the perpetrators and that the evidence contained in the investigation file led to the conclusion that the village had been burned by PKK terrorists.

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 applicant alleges 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 applicant maintains under Article 1 of Protocol No. 1 to the Convention that his right to peaceful enjoyment of his possessions was breached on account of the forced evacuation of him and his family from their home and destruction of his house and possessions by the security forces. He complains that he was deprived of access to and use of his land.

The applicant complains under Article 3 of the Convention that he and his family were arbitrarily evicted from their home without any justification whatsoever by the security forces and that they have been forced to squat in a building in Hozat , without proper facilities, income or future help from the State. He alleges that this type of treatment is degrading, inhuman and in violation of the State’s non- derogable obligations under Article 3.

The applicant maintains under Article 5 of the Convention that his right to liberty and security of person was breached on account of the arbitrary evacuation of him and his family from their village and destruction of his property.

The applicant submits under Article 6 of the Convention that he was unable to claim a remedy for the violations he had suffered on account of the lack of investigation against those responsible. The lack of any effective criminal proceedings prevents the applicant from bringing civil proceedings against those responsible.

The applicant asserts under Article 8 of the Convention that the destruction of his home and property by the security forces constitutes a violation of his right to respect for his private and family life and home.

The applicant alleges a violation of Article 13 of the Convention on account of the failure to provide an effective remedy for him to challenge the destruction of his home and possessions. He complains that his attempts have been in vain. He further submits that the Deputy Governor, by misstating his complaint and by asserting that he was not entitled to compensation, has ensured that there can be no effective remedy for the purposes of Article 13 of the Convention.

The applicant complains under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that he and his family are victims of a practice of violation of Article 14 on account of their ethnic origin and Alevi belief.

The applicant alleges a violation of Article 18 of the Convention since Turkish authorities allow the military to employ unlawful methods to suppress problems which include evacuation and destruction of villages in South East Turkey.

THE LAW

The applicant complains of the forced eviction of him and his family from their village and the destruction of his home and possessions by the security forces. He invokes 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

The Government submit that the applicant failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

The Government stress that despite his serious allegations the applicant has not availed himself of the judicial remedies in domestic law. They assert that in order to have exhausted domestic remedies the applicant must have expressly raised before the national authorities the complaints brought before the Court.

In this regard, the Government maintain that simply by addressing letters to the Prime Minister’s office, the Tunceli Provincial Governor’s office, the State of Emergency Region Governor’s office and the Welfare and Housing Minister’s office the applicant cannot be considered to have exhausted domestic remedies as required by Article 35 § 1.

The Government submit that, bearing in mind the fact that the applicant received substantial aid from the authorities on request, he should also have lodged criminal complaints with the judicial authorities. They maintain that there exist administrative, criminal and civil law remedies in Turkish law capable of redressing the applicant’s complaints and leading to the grant of compensation.

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. 2935 and legislative Decree no. 435. 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, 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 have also lodged a civil action for redress 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 applicant before the Court would indeed have been punishable under Turkish criminal law (see relevant domestic law above). In this connection the applicant should have lodged criminal complaints either with the Public Prosecutor’s office or local administrative authorities pursuant to Articles 151, 152 and 153 of the Code on Criminal Procedure. 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.

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 maintains that criminal, administrative and civil remedies demonstrated by the Government are not effective for the following reasons.

He submits in the first place that the criminal law was not imposed against the security forces and that in his case the authorities have blatantly and openly failed to enforce the criminal code. He contends that the Government have failed to produce a single example of a prosecution or conviction of security forces for the deliberate evacuation or destruction of property in the South-East of Turkey. With reference to the Court’s judgment in the Akdivar and others v. Turkey case (judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1204, § 41) the applicant alleges that when a criminal complaint is made against agents of the State, the law on the prosecution of civil servants is applicable. This procedure reinforces the unaccountability of security forces in South-East Turkey since it lacks independence or credibility.

The applicant contends that the remedy before the administrative courts in respect of his allegations was ineffective. He submits that the actions complained of are deliberate acts of the security forces, not acts of maladministration . On that account the Government’s arguments concerning the benefit of the social risk theory employed by the administrative courts as a ground for awarding compensation would mask the truth of the circumstances of the forced evacuation and the burning of his home and possessions. The applicant further argues that it is wholly unacceptable that a remedy which would grant only monetary compensation and ignore the responsibility of the security forces for forced evacuation and the burning of the houses cannot be considered an appropriate remedy given the serious nature of the complaint.

As regards the civil law remedies, the applicant asserts that there was no prospect of success in a civil law suit for damages against the State unless there had been a finding by a criminal court that an offence had occurred, even if no conviction resulted. Such a criminal verdict presupposes that there had been an investigation followed by a prosecution. However, there has been no investigation in his case and according to the letter dated 7 June 1996 it was explicitly stated that an investigation had not been continued by the authorities.

In sum, the applicant claims that he sought domestic remedies in Turkey and that the authorities failed to investigate his complaints or give any adequate form of response. He therefore requests the Court to reject the Government’s preliminary objection.

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 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 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).

In this regard, the Court notes that Turkish law provides civil, administrative and criminal remedies against illegal acts attributable to the State or its agents.

As regards a civil action for redress for damage sustained through illegal acts or patently unlawful conduct on the part of State agents, the Court recalls that a plaintiff must, in addition to establishing a causal link between the tort and the damage he has sustained, identify the person believed to have committed the tort (see the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431, § 73). In the instant case, however, those responsible for the destruction of the applicant’s property are still unknown.

With respect to an action in administrative law under Article 125 of the Turkish Constitution based on the authorities’ strict liability, the Court reiterates that the remedy indicated by the Government must be sufficiently certain, in practice as well as in theory (see, among other authorities, the Yağcı and Sargın v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 17, § 42). In this connection the Court notes that the Government referred to many cases which concerned the award of compensation by the administrative courts to plaintiffs who brought actions as a result of damage or injury they had suffered due to terrorist incidents in the state of emergency region. Undoubtedly these decisions illustrate the real possibility of obtaining compensation before these courts in respect of injuries or damage to property arising out of the disturbances or acts of terrorism.

However, as the Court has constantly held in similar cases, despite the extent of village destruction in the state of emergency region, there appears to be no example of compensation having been awarded in respect of allegations that property has been deliberately destroyed by members of the security forces or of prosecutions having been brought against them as a result of such allegations (see the Selçuk & Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 908, § 68 and the Gündem v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1131, § 60). On that account, the Court points out that in the cases referred to by the Government, the administrative courts awarded compensation on the basis of the doctrine of social risk, which is not dependent on proof of fault. Thus, under Turkish law an administrative law action is a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification is not, by definition, a prerequisite to bringing an action of this nature.

For the Court, however, 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.

Accordingly, the Court does not consider that a remedy before the civil or administrative courts can be regarded as adequate and effective in respect of the applicant’s complaints, since it is not satisfied that a determination can be made in the course of such proceedings concerning the allegations that property destroyed by members of the security forces.

On the other hand, the Court considers that a complaint to the Public Prosecutor could in principle provide redress for the kind of violations alleged by the applicant. The Court notes in this connection that the criminal investigation into the destruction and evacuation of the applicant’s village was in fact opened following the Kozluca villagers’ application to the Chief Public Prosecutor’s Office in Hozat . However,  the criminal proceedings were terminated by t he Hozat District Governor’s decision. The Court is therefore of the opinion that the applicant was not required to make a further explicit request to this effect by filing a criminal complaint as this would not lead to any different result.

In the light of the foregoing, the Court concludes that the Government’s preliminary objection in this respect 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, the Court, unanimously,

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

Michael O’Boyle Wilhelmina Thomassen Registrar President