FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28294/95 by Erdal KARAKOÇ 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 11 April 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 1967 and living in the 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, England.

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 facts

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

On 14 October 1994 military units arrived in the applicant’s village of Kozluca . The military units and the authorities of the Gendarme Station in the village collected the villagers from Kozluca in the village square. The villagers were told to leave the village. It took them two days to make the move. After the villagers had left the soldiers burnt their houses.

The applicant had to leave behind the crops which he had harvested as winter fodder for the animals - four haystacks, two tons of barley and two barns full of straw and firewood. The applicant also left behind two horses. When the applicant returned to his village to get firewood, he saw that his house and his haystacks had been burnt and the doors and windows of the house removed. The applicant’s house was a four-room house with a bathroom, a toilet, a kitchen and a stable.

The applicant and his family went to Hozat where they were placed in the municipal wedding salon belonging to the Hozat Municipality. Other villagers were housed in tents. The applicant is currently living along with four members of his family in a room of 25 m 2 at the wedding salon. There are two toilets and one bathroom for thirteen families in this salon.

The applicant, a farmer, has no work at Hozat and therefore no income. When he was living in his village, he could support his family by living off his land and his livestock. When the applicant and his family first arrived in Hozat they were each given 3 kilograms of provisions by the State as a one-off form of assistance and 1 million liras in aid. Apart from this, the applicant has received no compensation.

On 31 October 1994 the applicant petitioned the Prime Mini ster’s office, the Tunceli Provincial Governor’s office and the State of Emergency Region Governor’s office. He complained that he and his villagers had been forcibly evicted from their village on the orders of the Gendarme Station’s commander in their village and that of the soldiers who had come to the village as part of a military operation.

On 16 November 1994 the applicant lodged a petition with the Chief Public Prosecutor’s office in Hozat . In his petition he stated the following:

“I am residing in the village of Kozluca . During the military operations conducted in our region military authorities convened the villagers and ordered us to evacuate the village in so short a time. We were forcibly evicted [from our village]. I am living in the wedding salon of the municipality. I have made written applications to the authorities. I did not receive any reply. When I went to [my village] to get firewood I saw that a part of my house as well as haystacks had been burned and that the doors and the windows [of my house] had been removed. I declare that I was forcibly evicted [from my village] and that the villagers witnessed [this incident]. I respectfully request that those who had given damage to my house and who had forcibly evicted me [from my village] be prosecuted.”

On 26 January 1995 the District Governor of Hozat , Mr Günay Özdemir , wrote a letter in reply to the applicant stating:

“...The inhabitants of nine villages attached to our district moved to the Hozat District centre as well as other provinces and districts.

The citizens who moved to the Hozat District centre were lodged in private and public buildings and they received food and monetary aid. These aids are still continuing and our Governorate tried to find solutions to our citizens’ problems. As regards [your] request to be housed, I would like to inform you that you do not fulfil the requirements of Housing Law no. 2510 nor the legal grounds and there is nothing to be done.”

The applicant has not pursued any other domestic remedy.

2. Government’s version of the facts

The applicant left his village due to the terrorist activities in his region. His allegations concerning the evacuation of his village are untrue according to the information obtained from the Gendarme General Headquarters. There is no evidence which proves that his house had been burned down.

Upon his request, the District Governor of Hozat supplied the applicant with a lodging in the municipal hall. He received aid amounting to 24,131,000 Turkish liras (TL) for food, heating and rent. This aid continues. However, the applicant did not apply to the authorities to receive 2,875,000 TL of monetary aid which was due at the time.

The District Governor made a public declaration to the effect that those who had left their villages as a result of terrorist threat would be given land and material free of charge for construction of new houses.

On 11 January 1995 the Chief Public Prosecutor of Hozat , who had received the applicant’s criminal complaints concerning his eviction from his village and destruction of his property, issued a decision of non-jurisdiction and referred the investigation file to the Hozat District Administrative Council in accordance with the Law on the Prosecution of Civil Servants. The investigation is still pending before the Administrative Council.

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 the peaceful enjoyment of his possessions was breached on account of his forced evacuation of him and his family from their home and destruction of his property 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 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 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 to enable 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 had left his village as a result of fear of the terrorists, 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 his and his family’s forced eviction 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 criminal investigation into the alleged evacuation of the applicant’s village and destruction of his house and possessions is still pending before the Hozat District Administrative Council. They claim that the applicant should await the outcome of the Hozat District Administrative Council’s decision. They further contend that the application is premature since the applicant lodged his appli cation with the Commission only 3 months after the transfer of the preliminary investigation file from the Chief Public Prosecutor’s office to the Administrative Council.

In this respect, the Government assert that the application should be declared inadmissible on account of the applicant’s failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

The applicant refu tes the Government’s submission that he brought his application prematurely. He alleges that the authorities failed to investigate his complaints or give any adequate form of response. He maintains that the Hozat District Administrative Council was seized of the investigation file on 11 January 1995 and that it failed to reach a decision despite the lapse of a very long time. Furthermore, it is all the more unrealistic to expect the Administrative Council to reach decision other than one of non-prosecution bearing in mind the fact that the District Governor is a member of the Council and that he has already given his opinion on the matter in his letter of 26 January 1995.

In reply to the Government’s argument that he lodged his application with the Commission only 3 months after the investigation file was transferred to the Administrative Council, the applicant submits that he was obliged to do so in view of the requirement that in a situation where there is no effective remedy the application must be brought within six months of the incident giving rise to the complaint.

The applicant also submits that he is exempt from exhausting domestic remedies due to the administrative practice of forced evacuations and destruction of villages and failure to provide an effective remedy for violations perpetrated by the security forces. In this connection the applicant 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 connection, the Court observes that following the Hozat Public Prosecutor’s decision of non-jurisdiction in relation to the security forces the authorities have not conducted any further investigation into the applicant’s allegations. On the contrary, the national authorities, such as the District Governor of Hozat as well as other administrative authorities, remained totally passive in the face of serious allegations of misconduct by State agents. Furthermore, five years after the receipt of the investigation file no decision has been taken by the Hozat District Administrative Council 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 applicant’s allegations, of which - as was clear from his petitions of 31 October and 16 November 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 his complaints there was no requirement for the applicant to await the outcome of the criminal proceedings before the Hozat District Administrative Council. In this respect, 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, by a majority,

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

Michael O’Boyle Wilhelmina Thomassen Registrar President