FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31845/96 by Kemal DÄ°LEK 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 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 1930 and living in Marl- Haim , Germany. He is represented before the Court by Mrs Naciye Kaplan, a lawyer practising in Ä°stanbul .

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 1974 the applicant, after having worked for ten years as a labourer in Germany, bought land of 7.5 hectares in the Değirmen hamlet of the Çayağzı village, attached to the Yayladere district of the Bingöl province in South-East Turkey. There were fruit trees and more than two thousand poplar trees on his land. He built a house on the land and enclosed the garden of the house with 500 meters of stone wall. The applicant and his family went to their house in the hamlet each summer. His land was cultivated by Ş.T., who gave half of the annual revenue from the land to the applicant and who also lived in the house when the applicant was not there.

In 1994 security forces carried out operations in the region. Gunfire discharged from helicopters used by security forces destroyed the roof of the applicant’s house. Thereafter security forces forcibly evicted Ş.T. from the applicant’s house.

On 8 December 1995 an inhabitant of the hamlet, H.D. , informed a relative of the applicant living in İstanbul , S.G., that the applicant’s house had been burned down. When the applicant was informed by S.G. of the destruction of his house, the applicant’s son telephoned his niece, H.D. , to get information on particulars of the destruction. H.D. told him that she was unable to give detailed information as her telephone had been tapped by security forces.

On 14 December 1995 the applicant went to the hamlet and saw that his house and its contents had been burned. He took some photographs and made a video recording of his house. He was informed by the mayor of the village ( muhtar ), H.T., and other villagers, that there had been clashes between security forces and terrorists near the hamlet which resulted in killing of 9 terrorists, and that two days after the clashes his hou se had been burned down because it had been used by terrorists.

On 10 January 1996 the applicant filed a petition with the Public Prosecutor’s office in İstanbul for submission to the Public Prosecutor’s office in Bingöl . He requested an investigation into the destruction of his house and its contents by security forces.

The applicant has not pursued any further domestic remedy.

2. Government’s version of the facts

Subsequent to the receipt of the applicant’s petition concerning his request o for investigation into the destruction of his house by security forces, the Bingöl Chief Public Prosecutor declined jurisdiction ratione loci and sent the applicant’s petition to the Yayladere Public Prosecutor’s office.

On 31 December 1996 the Yayladere Chief Public Prosecutor issued a decision of non ‑ jurisdiction stating that the impugned incident should be investigated by the Chief Public Prosecutor at the Diyarbakır State Security Court since it concerned a terrorist act. The Public Prosecutor noted that subsequent to the taking of evidence from the witnesses it had been understood that the applicant’s house had been destroyed during clashes between terrorists and security forces. He noted however that the perpetrators of the burning of the applicant’s house could not be identified.

The local authorities carried out investigation into the destruction of the applicant’s house. In this respect, on 25 February 1998 gendarmes from the Yayladere Central Gendarme Command under the command of H. Ahmet Önder , Central Gendarme Station’s Deputy Commander, went to the applicant’s hamlet to carry out a survey at the scene of the incident. They were accompanied by the muhtar of the Çağlayan village, Mr Mehmet Dilek , and a member of the Village Elders’ Council, Mr Şükrü Taylan . After having seen the state of the applicant’s house, the gendarmes drew up a scene of incident report. They noted that the roof of the applicant’s house had been destroyed, wooden parts of the house had been burned, the walls were in good condition and the house empty. They further noted that the house had been destroyed during the clashes between the security forces and terrorists in the region.

On 25 February 1998 the Yayladere Central Gendarme Station Commander took statements from the muhtar of the applicant’s village, Mr Mehmet Dilek . He stated:

“I have been living in the Çayağzı village for 25 years and I have been the muhtar of this village for 12 years. Mehmet’s son Kemal Dilek ... went to work in Germany 25 years ago. He had this house built in 1974. Şükrü Taylan stayed in this house for some time. In 1993 Şükrü Taylan had already emptied this house. In 1994 security forces carried out an operation against terrorists who had been lodging in a stream bed 400-500 meters away in the northern part of Kemal Dilek’s house. Clashes [between the security forces and the terrorists] lasted 24 hours without any interval. [ Kemal Dilek’s ] house is in the place where the clashes took place and it is 1 km away from the village. The clashes continued night and day. So far as we know there was a group of 70-80 PKK terrorists at the scene of the clashes. These terrorists used to come to our village in order to take our food, clothing and goods. They forcibly abducted young people and forced them to become terrorists. Thus, in order to stop this oppression and rescue us from terrorists, the soldiers of our State carried out an operation here and tried to pacify these [terrorists]. Subsequent to the clashes smoke was coming out of Kemal Dilek’s house. I do not know by whom the house was burned and destroyed, I’m sure the house was burned as a result of the clashes in the region. I do not know whether the house was destroyed by the soldiers. No one who can know that. However, in December 1997 nobody did any damage to [ Kemal Dilek’s ] house...”

The applicant’s fellow villager Mr Şükrü Taylan stated, inter alia :

“... Kemal Dilek’s house was destroyed as a result of the clashes [between the security forces and terrorists]... In my opinion, the house must have been burned down as a result of gunfire from terrorists on the soldiers... There are two houses in the DeÄŸirmendere hamlet. Both of them have been empty since 1993. I have emptied one of these houses, the one which belongs to Kemal Dilek . The other house was emptied by Mehmet Yavuz in 1991...” 

Mr Yusuf Yıldız stated, inter alia :

“I was in the village on 6 December 1996 when the alleged incident took place. On that date clashes occurred between the security forces and terrorists and 9 terrorist were found dead. These terrorists used to stay in Kemal Dilek’s house. An operation was carried out in the house and it was destroyed on the ground that there might be some other terrorists in the house. Kemal Dilek emigrated to Germany and he had blocked off the entrance door by a wall...”

Mr Ali Gür stated, inter alia :

“I live in the Çayağzı village... Clashes occurred just above the village and 9 terrorists were killed. During the search carried out subsequent to the operation [the security forces] found out that terrorists had been using Kemal Dilek’s house as a shelter. The house was burned down on the ground that there might be terrorists inside. There was nothing belonging to Kemal Dilek inside the house. He was already living in Germany. Kemal Dilek had blocked off his house’s main door by a stone wall. We advised him not to do so since the house could then be used as a shelter by terrorists. As we thought, terrorists used the house as a shelter. This was the reason for the destruction of the house at that time. I know that the soldiers deliberately did this...”

The investigation into the destruction of the applicant’s house is pending before the Chief Public Prosecutor’s office at the Diyarbakır State Security Court since the perpetrators of the act is still unknown.

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

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

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

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

(d) 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 and 14 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 the peaceful enjoyment of his possessions was breached on account of the destruction of his property by the security forces.

The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment since his house was destroyed by the security forces. He submits that he was psychologically affected and was afraid of returning to his village.

The applicant maintains under Article 5 of the Convention that his right to liberty and security of person was breached on account of his and his family’s arbitrary eviction from their village.

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 failure of the authorities to  undertake an investigation against those responsible. The lack of any effective criminal proceedings prevent 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 to enable him to challenge the destruction of his home and possessions.

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 Kurdish origin.

THE LAW

The applicant complains of the destruction of his home by the security forces. 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 applicant has failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

The Government maintain that remedies exist in Turkish law for redressing the applicant’s complaints, which lead to the grant of compensation. They 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 many decided cases, 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 his house during the evacuation of his village by security forces (decision no. 1996/772 on file no. 1993/426).

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.

The Government conclude therefore that the applicant has not done all that could be expected of him to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The applicant contends in reply that he was not required to pursue any further remedies in domestic law since any purported remedy is illusory, inadequate and ineffective due to the administrative practice of village burning by the State security forces. He maintains that a remedy before the administrative courts in respect of his allegations was ineffective. He submits that the award of monetary compensation by the administrative courts does not redress the damage suffered by him. He asserts in this connection that a decision rendered by the administrative courts is limited to the grant of monetary compensation and ignores the responsibility of the security forces for forced evacuation and the burning of houses.

The applicant further submits that he applied to the Public Prosecutor’s office requesting the institution of criminal proceedings against the security forces. However, no effective investigation has been carried out which is capable of leading to the punishment of those responsible.

The applicant claims that he has done all that could be expected of him to exhaust domestic remedies. 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 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 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 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 applicant, or one of negligence. In this respect, the Court does not consider that the case of Mrs Ağırtmış demonstrates with sufficient certainty the existence of effective and accessible remedies for complaints such as the applicant’s (see the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998 ‑ II, p. 908, § 68).

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 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 was intentionally destroyed by members of the security forces.

Furthermore, the Court observes that the applicant lodged a petition with the Public Prosecutor’s office on 10 January 1996 complaining about the destruction of his property by the security forces. Despite this, the judicial authorities did not carry out an investigation until 25 February 1998, after the Commission had communicated the application to the Government on 21 October 1997. Moreover, it appears that the ensuing investigation has been limited to the taking of statements from the village muhtar and two other villagers and has not yet been concluded.

The Court therefore concludes that there existed special circumstances which dispensed the applicant from the obligation to pursue any further domestic remedies. It follows that the Government’s preliminary objection on non-exhaustion 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 application 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