FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31890/96 by Makbule KINAY and Ramazan KINAY 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 21 May 1996 and registered on 13 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants , both born in 1956, are a married couple. They are Turkish nationals and currently living in Ä°stanbul .

They are represented before the Court by Mrs Bedia Buran , Mrs Naciye Kaplan and Mrs Filiz Köstak , lawyers practising in İstanbul .

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The date of the alleged events is disputed by the parties. In their initial application the applicants submitted that the alleged events giving rise to their complaints took place in 18 September 1995.

The respondent Government contested the date of the alleged events in their observations.

In their letter of 31 July 1996 addressed to the Secratariat of the European Commission of Human Rights the applicants submitted that the alleged incidents had occurred on “18 September 1994” and that due to a clerical mistake on their part they had written “1995” in their application form.

1. Applicants’ version of the fact

Until 18 September 1994 the applicants lived in the Dirimpınar village of the Malazgirt district in the province of MuÅŸ .             

On an unspecified date, while the applicant Ramazan Kınay was serving his sentence in the Diyarbakır prison, the mayor of the village ( muhtar ) told the villagers and the applicant Makbule Kınay that their houses would be burned by security forces. Following this information some of the villagers removed their belongings from their houses.

On 18 September 1995, at about 8 p.m., security forces, composed of 50-60 village guards, special team members and gendarmes, arrived in the applicants’ village. Some members of the security forces conducted a search of the applicants’ house. They seized the valuables belonging to Makbule Kınay . They manhandled and insulted her as well as her three children. Then they poured gas on the applicants’ house and set it on fire together with its contents.

Makbule Kınay recognised the village guards who had burned her house as being from the Nurettin village of the Malazgirt district.

Following the burning of her house, Makbule Kınay moved to her relatives’ house in the Bulanık district of Muş . She then moved to İstanbul as a result of intimidation by the security forces. She later learnt that 75 tons of barley had been collected from their fields by the village guards.

On 15 March 1995 Ramazan Kınay was conditionally released.

On 30 November 1995 Ramazan Kınay filed a petition with the Üsküdar Chief Public Prosecutor’s office in İstanbul for submission to the Public Prosecutor’s office in Malazgirt . In his petition he stated the following:

“On 18.09.1994 my house in the Dirimpınar village of Malazgirt-Muş was burned by the State Security forces. Our belongings, which my wife had removed from the house, were also burned. The houses of my brothers - İbrahim Kınay and Faruk Kınay - as well as my mother’s house next to mine were burned. Our land of 600 acres ( dönüm ) was shared and used by the village guards from the Malazgirt district. I had to emmigrate to Istanbul along with my wife and five children since my house was burned down. We are in difficulty as I am unemployed. We want to return to our village if the [required measures] are taken.

I respectfully request that the damage I suffered be established and redressed.”

No investigation was carried out into the applicants’ complaints.

2. Government’s version of the facts

The applicant Ramazan Kınay was convicted of membership of the PKK and he was serving his prison sentence at the time giving rise to the alleged events.

The authorities carried out an investigation into the applicants’ allegations of destruction of their property and their forced eviction from the village.

On 5 December 1997 the Malazgirt Gendarme Commander took statements from the mayor of the Dirimpınar village. He stated:

“... Ramazan Kınay is from our village... While Ramazan was serving his sentence, his wife Makbule Kınay along with his relatives moved to Adapazarı taking their belongings. I know that they are currently living in İstanbul . Contrary to the allegations, as a muhtar , I was not told by the Gendarme Unit Commander to tell some of the villagers that their houses would be burned on account of their support for the PKK terrorist organisation. I have never asked the Unit Commander not to burn these houses. Because I haven’t had either such a meeting or a speech on the matter with the Unit Commander. If, as alleged, we had been insulted, intimidated or forced to evacuate our village, any of the families, including would not be residing here. There are 26 families currently residing in the village and nobody forcibly moved out of the village. The persons who immigrated are those who had been sheltering and aiding the PKK terrorist organisation. These [persons] left the village on their will. There are three women and two men from the Kınay family who are active [militants] in the mountain cadre of the PKK terrorist organisation... I haven’t seen either a soldier or a villager guard who had been involved in the burning of their house. I did not see Makbule Kınay and her children being insulted and I don’t think that this could have taken place in our village. These persons have taken out their belongings from their houses themselves. There was nobody from the security forces while they were emptying their houses. I am informed of everything in the village since I am the muhtar . None of the security forces came to the village. So far as I know [the applicants] are the owners of 10 acres of land which is currently unused. It is impossible to harvest 75 thousand kilograms of barley from this field since it has not been sowed... Contrary to the allegations their lands are not shared by anyone and they are currently unused...”

According to the records of the Land Registry the applicants are the owners of 10,56 acres of land.             

Subsequent to the investigation carried out by the authorities it was understood that, at the relevant time, there were no village guards or operations being carried out in the region.

The investigation is still pending before the Malazgirt Public Prosecutor’s office since the perpetrators of the alleged acts have not yet been found.

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 and 14 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 evacuation of them from their village, destruction of their house and possessions. They allege that the village guards from the Nurettin village seized their barley. The applicants further complain that they were deprived of access to and use of their land.

The applicants maintain under Article 3 of the Convention that they were subjected to inhuman and degrading treatment as well collective punishment since they were forcibly evicted from their village and Makbule Kınay and her children were beaten up by village guards and security forces.

The applicants allege under Article 5 of the Convention that they were deprived of their liberty and security since they were forcibly evicted 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 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 LAW

The applicants complain of their forced eviction from their village and the destruction of their home and possessions by the security forces. They invoke 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 applicants failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention.

The Government maintain that there exist remedies in Turkish law capable of redressing the applicant’s complaints and leading to the grant of compensation. 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. 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 conclude therefore that the applicants have not done all that could be expected of them to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

The applicants contend in reply that they were not required to pursue any further remedies in domestic law since any purported remedy is illusory, inadequate and ineffective having regard to the situation in the state of emergency region which is such that people are intimidated and subjected to forced emmigration .

The applicants maintain that a remedy before the administrative courts in respect of their allegations was ineffective. They submit that the award of monetary compensation by the administrative courts does not redress the damage suffered by them. They contend 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. They further submit that they 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 applicants claim that they have done all that could be expected of them to exhaust domestic remedies. They therefore request 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 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 Mrs 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).

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 applicants’ 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 applicants lodged a petition with the Public Prosecutor’s office on 30 November 1995 complaining about their eviction from their village and destruction of their property by the security forces. Despite this, the judicial authorities did not carry out an investigation until 5 December 1997, after the Commission had communicated the application to the Government on 8 September 1997. Moreover, it appears that the ensuing investigation has been limited to the taking of statements from the village muhtar and has not yet been concluded.

The Court therefore concludes that there existed special circumstances which dispensed the applicants 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 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, by a majority,

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

Michael O’Boyle Wilhelmina Thomassen Registrar President