FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31848/96 by Cemal GÃœVEN and Nurhayat GÃœVEN 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, a married couple, are Turkish national s , born in 1952 and 1950 respectively and living in Istanbul. Th ey are represented before the Court by Mrs Bedia Buran , a lawyer practising in Ankara and Mrs Filiz Kostak and Mrs Naciye Kaplan, 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. Applicant’s version of the facts

Cemal Güven is the husband of Nurhayat Güven . They lived in the Nurettin village of the Malazgirt district in the province of Muş .

On 27 March 1994 Cemal Güven was elected to the Village Elders’ Council ( Köy İhtiyar Meclisi ) in the local elections. A.E. , who had stood as a candidate to be the mayor of the village ( muhtar ), lost the elections whereupon he agreed to be a village guard.

Subsequent to the local elections A.E. denounced Cemal Güven , the muhtar and other members of the Village Elders’ Council to the Malazgirt Gendarme Command alleging that they were assisting PKK terrorists.

Following the denunciation, approximately 150 soldiers arrived in the Nurettin village with 3 personnel carriers and two military vehicles. They surrounded the houses of the muhtar and the members of the Village Elders’ Council.

The soldiers conducted a search in Cemal Güven’s house and shop. They found a Kalashnikov rifle in the shop. The soldiers then destroyed the goods in the shop and insulted and manhandled Cemal Güven . The village guards and the soldiers seized 50,000,000 Turkish liras belonging to the applicant and his daughters’ two earrings, four gold bracelets, two necklaces and 3 ‑ metre ‑ long gold necklace.

On 6 April 1994 Cemal Güven was taken to Malazgirt Gendarme Headquarters, where he was held in custody for two days. During his detention in custody he was deprived of food, water and sleep. He was accused of winning the elections with the PKK’s help. He was then brought before the Malazgirt Public Prosecutor and detained on remand on 8 April 1994 by the Malazgirt Magistrates’ Court.

On 6 May 1994 Nurhayat Güven filed a petition with the Malazgirt Chief Public Prosecutor’s Office complaining about the misconduct of the soldiers and village guards. She also reported her complaints to a first lieutenant from the Malazgirt Gendarme Headquarters. The first lieutenant interrogated the special team members and the village guards, who told him that they were not responsible and that they had not taken anything from the applicants.

Subsequent to her return to her village Nurhayat Güven was intimidated by the village guards on account of her applications to the authorities in Malazgirt . The village guards came to her house and beat up her brother-in-law and her children. They also took away one ton of chickpeas and two tons of wheat from her house.

The following day the village guards and special teams came to the applicants’ house again and ordered them all out of the house. The village guards, A.Ç. and A.E. , threw white ‑ coloured dust on the applicants’ house, which the applicant later understood to be fire ‑ dust. The village guards then set the applicants’ house on fire. The contents of the house, which was worth approximately one billion Turkish liras at the time, and her animals were burned as a result of the fire.

Thereafter the villagers were convened in the Village Square on the security forces’ orders. The Gendarme Commander Osman Çakar told the villagers that the houses of those who do not agree to be village guards would be burned like the applicants’. Then, the village guards visited all the houses in the village and requested the villagers to agree to be village guards. Since the villagers did not agree to be village guards, almost 100-150 houses were burned down. The applicants and the inhabitants left their village following the burning of their houses.

Nurhayat Güven and her children settled in the Malazgirt district. Fifteen days later, the village guard, H.K. , came to her house in Malazgirt and told her not to submit any complaints to the authorities. He told Nurhayat Güven that he would kill her son if she did so.

On 13 July 1994 Cemal Güven was released and returned to his home in the Malazgirt district.

On 15 July 1994 M.S.T. and A.K.Ç. brought a message from the village guards telling Cemal Güven that he would be killed and that their house would be bombed.

On 17 July 1995, at about 11 p.m., the applicants’ house was surrounded by village guards and special team members. Cemal Güven was told to agree to be a village guard and that he should leave the city and would be killed if he refused. The applicant requested a week to think about it and left the city in a week to move to Istanbul.

On 10 October 1995 Cemal Güven filed a criminal complaint with the Chief Public Prosecutor’s Office in Istanbul for submission to the Public Prosecutor’s Office in Malazgirt . He complained about the impugned events and requested the judicial authorities to begin an investigation into his complaints.    

2. Government’s version of the facts

The authorities began an investigation into the complaints lodged by the applicants on 6 May 1994. The Muş Chief Public Prosecutor’s Office instituted criminal proceedings against the village guards, Abdullah Büyükdağ and Zilkif Polat , who were alleged to be the perpetrators of the burning of the applicants’ house.

On 9 November 1994 the Muş Chief Public Prosecutor filed an indictment with the Muş Assize Court charging the two village guards with deliberate burning of the applicants’ house and requesting their punishment under Article 370 of the Turkish Criminal Code.

On 8 November 1995 the MuÅŸ Assize Court acquitted the two village guards on account of lack of sufficient evidence. The court held:

“The complainant [ Cemal Güven ] alleged that the accused Abdullah Büyükdağ and Zilkif Polat had burned his house in Malazgirt while he was in prison and after his wife and children had abandoned it.

The scene of the incident report was examined. The complainant had his belongings and materials in his shop and house removed to Malazgirt whilst he was in prison. The house [in the village] was therefore empty. Only the wooden materials of the roof were burned and the walls were in good state. No one witnessed the impugned incident. The investigation report concluded that the complainant might have asked someone to burn his house. No objection was filed against this report.

The witnesses heard, Ahmet Özen , Ahmet Güzel , Kerim Aslan , stated that they had not seen the burning of the house and that the complainant’s wife and children were not in the village but in Malazgirt . They further stated that they did not know who had burned the house.

There is no sufficient and convincing evidence to convict the accused on account of the alleged deliberate burning of the complainant’s house. Having regard to the witnesses’ statements, the scene of the incident report, the complainant’s complaints and the accused’s defence, it was decided to acquit the accused on account of the lack of evidence that they had committed the alleged crime...”

On 27 November 1995 the President of the Muş Assize Court informed the Chief Public Prosecutor’s Office that the two village guards, Abdullah Büyükdağ and Zilkif Polat , who had been charged with the burning of the applicant’s house, had been acquitted. He ordered the Public Prosecutor to continue the investigation until a new suspect or new evidence was found.

Subsequent to the receipt of the order issued by the Muş Assize Court, the Muş Chief Public Prosecutor issued a decision of non-jurisdiction transferring the file to the Malazgirt Chief Public Prosecutor’s Office.

On 25 June 1996 the Malazgirt Chief Public Prosecutor instructed the District Gendarme Command to continue the investigation and to report to him every three months concerning any further evidence about the burning of the house.

On 10 September 1997 the Malazgirt District Gendarme Commander informed the Chief Public Prosecutor’s Office that no evidence had been obtained and that the investigation continued with a view to finding the perpetrators of the impugned act.

In the meantime, on 6 April 1994, during a search conducted by the security forces an unregistered Kalashnikov rifle, five cartridge clips and ten bullets were found in Cemal Güven’s shop.

On 7 April 1994 Cemal Güven was questioned by the Malazgirt Chief Public Prosecutor in relation to the rifle. On the same day he was brought before the Malazgirt Magistrates’ Court which ordered his detention on remand.

On 13 April 1994 the Malazgirt Chief Public Prosecutor filed an indictment with the Criminal Court charging Cemal Güven with possessing an unregistered fire arm contrary to the Fire Arms Act (Law no. 6136) and requesting his punishment.

On 16 November 1994 the Malazgirt Criminal Court convicted Cemal Güven on account of his unlawful possession of an unregistered firearm and sentenced him to five years’ imprisonment and to a fine of 1,650,000 Turkish liras. The court further ordered the seizure of the Kalashnikov rifle.

On 3 October 1995 the Court of Cassation upheld Cemal Güven’s conviction.

B. Relevant domestic law and practice

1. Administrative liability

Article 125 of the Turkish Constitution provides as follows:

“All acts or 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 of the provision 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 authors 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

The Turkish Criminal Code makes it a criminal offence:

(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),

(c) to issue threats (Article 191),

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

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

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

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

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 lives 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 alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (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.

COMPLAINTS

The applicants allege 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 allege under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions was breached on account of the burning of their house and seizure of their valuables by the village guards and the security forces.

The applicants submit under Article 3 of the Convention that they were forcibly evic ted from their village without any justification whatsoever and that Nurhayat Güven and her children were beaten up by the security forces and village guards. They allege that this type of treatment is degrading and inhuman.

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

The applicants submit under Article 6 of the Convention that they were unable to claim a remedy for the violations they had suffered on account of the lack of the effective and thorough investigation against the perpetrators of the impugned incidents. The lack of any effective criminal proceeding prevents the applicant from bringing civil proceedings against those responsible.

The applicants assert under Article 8 of the Convention that their right to respect for their family life was violated as they were forcibly evicted from their home and village and their property was destroyed by the village guards and the security forces.

The applicants maintain under Article 13 of the Convention that there are no effective remedies against the misconduct of the security forces in the state of emergency region.

The applicants contend under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that they were a victim of a practice of violation of Article 14 on account of their Kurdish origin.

THE LAW

The applicants complain of their forced eviction from their village and the destruction of their home as well as the seizure of their valuables by the village guards and 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 objections

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 contend that the applicants have not availed themselves of the judicial remedies in domestic law. They maintain that in order to have exhausted domestic remedies the applicants must have expressly raised before the national authorities the complaints brought before the Court. They submit that it would have been possible for the applicants to seek redress before the administrative courts. In this respect, with reference to 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 assert that the administrative courts have awarded compensation in many cases involving death, injury or damage to property.

In the Government’s submission, even if it could be assumed that there was no remedy to be exhausted, which they dispute, then the applicants should have lodged their application within the six-month time limit. They maintain that the running of the six-month begin from the date of the last decision given by the authorities in respect of the allegations. They contend therefore that the applicants failed to comply with the six-month rule since the impugned incidents alleged to have occurred in May 1994 and the applicants lodged their application with the Commission on 12 April 1996.

The applicants contend in reply that they were not required to pursue any further remedy in domestic law since any purported remedy is illusory, inadequate and ineffective. They maintain that they lodged criminal complaints with the Malazgirt Public Prosecutor’s Office with a view to exhausting domestic remedies but the authorities failed to carry out an effective investigation into their complaints. They submit that the authorities did not carry out any further investigation subsequent to the acquittal of the two village guards and none of the perpetrators of the impugned acts were identified or punished. The applicants further allege that there is an administrative practice of failure to provide an effective remedy for abuses carried out by the security forces and an administrative practice of destruction of villages.

In the applicants’ opinion, the administrative law remedies pointed out by the Government cannot redress their Convention grievances since the administrative courts do not award sufficient compensation and proceedings last unreasonably long.

The applicants claim that they have done all that could be expected of them to exhaust domestic remedies. In this connection, 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 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 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 subsequent to the applicants’ criminal complaints to the Public Prosecutor’s Office in Malazgirt , criminal proceedings were brought against two village guards who were alleged to be the perpetrators of the impugned acts. However, these two village guards were acquitted on account of the lack of sufficient evidence. The authorities did not carry out any further investigation apart from the Malazgirt Chief Public Prosecutor’s instruction requiring the District Gendarme Commander to report to him every three months concerning any evidence about the burning of the house. The last action concerning the investigation dated 10 September 1997, when the Malazgirt District Commander informed the Chief Public Prosecutor’s office that no evidence was obtained. Since then the authorities did not take any significant step with a view to identifying and punishing the village guards and the security forces who had allegedly burned the applicants’ house and seized their valuables. In these circumstances, the Court considers that there existed special circumstances which dispensed the applicants from the obligation to pursue any further domestic remedies. The Court concludes therefore that the Government’s preliminary objection on non-exhaustion must be dismissed.

As regards the Government’s contention that the applicants failed to comply with the six-month rule, the Court notes that the last decision concerning the investigation into the applicants’ complaints was taken by the Chief Public Prosecutor on 25 June 1996 and the investigation has not yet been concluded. By filing their application with the Commission on 12 April 1996, the applicants satisfied the requirement of Article 35 § 1 in that regard. The relevant objection must therefore be dismissed.

In sum, the Court concludes that the Government’s preliminary objections that the applicants failed to comply with the requirements of Article 35 § 1 of the Convention 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 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, by a majority,

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

Michael O’Boyle Wilhelmina Thomassen Registrar President