FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36202/97 by Zeynel BEKTAÅž 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 March 2000 and registered on 23 May 2000,

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 1935 and living in Ankara. He is represented before the Court by Mr Halil İbrahim Özdemir , a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicant and his family lived in the Ardıçlı village of the Pülümür district attached to the Tunceli province.

On 14 November 1993 the appl icant and his family left their village taking their belongings as a result of pressure from security forces and terrorist organisations. The applicant sold his animals at a very cheap price prior to their departure. He and his family settled in Ankara.

On 10 October 1994 security forces carried out an operation in the region including the applicant’s village. During the operation the security forces burned down the applicant’s house and dairy farm.

On 11 October 1994 the applicant learned of the destruction of his property via a press conference held by the Tunceli Association and the Tunceli Foundation in Ankara.

On 13 October 1994 the applicant filed petitions with the Tunceli Governor’s office, the Prime Minister’s office and the President of the Republic’s office and on 11 December 1995 with the Interior Minister’s office. He complained to the authorities that he and his fellow villagers had been forced to leave their village as a result of pressure and that his house and dairy farm had been burned down by security forces.

On 28 November 1995 an investigation was carried out into the applicant’s allegations on the orders of the Tunceli Governor. The investigation concluded that the applicant and his fellow villagers had left their village as a result of the pressure from PKK terrorists and that the houses in the village had been destroyed due to bad winter conditions.

On 28 November and 20 December 1995 the Tunceli Deputy Governor sent letters in reply to the applicant stating that his house and dairy farm had not been destroyed by the security forces but because of winter conditions.

In 1998 the Tunceli Governor’s office carried out another investigation in the applicant’s village Ardıçlı . The authorities found that there was no trace of burning of the applicant’s house and that the only damage seen on the house was a hole on the roof which have been caused as a result of the winter conditions, namely heavy snow.

According to the official records kept by the military authorities, State security forces did not carry out any operation around the applicant’s village, Ardıçlı .

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 applicant complains of violations of Articles 3, 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The applicant alleges under Article 1 of Protocol No. 1 to the Convention that he was deprived of his right to peaceful enjoyment of his possessions on account of the burning of his house and dairy farm by the security forces.

The applicant complains under Article 3 of the Convention that he was subjected to a degrading treatment since he was forcibly evicted from his village, and his house and dairy farm was burned down.

He contends under Article 6 of the Convention that he had no right of access to a court in order to request compensation for the destruction of his property.

The applicant submits under Article 8 of the Convention that his right to respect for his family life and home was violated as a result of his forced eviction from his village and burning of his house and dairy farm.

The applicant further alleges a violation of his rights under Articles 2, 5 and 18 of the Convention on the basis of the same facts.

The applicant maintains under Article 14, in conjunction with the above-mentioned Articles of the Convention, that he was deprived of his rights since he is of Kurdish origin and belonged to the Alevi sect.

THE LAW

The applicant complains of his forced eviction from his village and the destruction of his home and dairy farm by the security forces. He invokes Articles 2, 3, 5, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The Government submit that the applicant failed to exhaust domestic remedies available to him within the meaning of Article 35 § 1 of the Convention. They assert, in the alternative, that the applicant failed to comply with the six-month rule as required under Article 35 § 1 of the Convention and, on that account, his application should be declared inadmissible.

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 judicial authorities the complaints brought before the Court.

The Government submit 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. 430. 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 affirmed that the administrative courts have 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 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. The applicant should therefore have lodged criminal complaints either with the Public Prosecutor’s office or with the local administrative authorities.

In the Government’s submission, even if it could be assumed that there was no remedy to be exhausted in domestic law, which they dispute, then the application should have been lodged with the Commission by 12 February 1996 at the latest. In this regard, they point out that under Turkish administrative law when someone does not receive a reply to his petition containing his request of compensation within 60 days, it is considered an implicit refusal of his request by the administration. The person concerned must therefore apply to the administrative courts within 60 days after the implicit refusal of his request. They submit that the application was introduced on 12 March 1997, whereas the applicant was aware of the alleged destruction of his house on 11 October 1994. The Government contend in this connection that even assuming that 12 February 1996 be considered as the beginning of the s ix-month period, the applicant cannot be considered to have complied with the six-month rule. 

The applicant contends that he was not required to pursue any further domestic remedy since any purported remedy is illusory, inadequate and ineffective. He further submits 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.

The applicant maintains that criminal, administrative and civil remedies relied on by the Government are not effective.

The Court notes at the outset that the applicant has not availed himself of any domestic remedies referred to by the Government in respect of his grievances as he considers that they are ineffective. In this respect, the Court reiterates that in other cases regarding destruction of villages in south-east Turkey the Court has found that applicants were not in the circumstances of those cases required under Article 35 § 1 of the Convention to pursue domestic remedies before complaining to the Convention organs (see the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1213, § 73; the Mente  and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 60; the Sel  uk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 908, § 71; the G  ndem v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1132, § 64). The Court would also point out that in the above ‑ mentioned cases the applicants had all applied to the Convention organs within six months of the date of the destruction of their villages.

The Court does not find it necessary to determine whether it could be said that there existed such special circumstances in the present case which would dispense the applicant from the obligation to exhaust domestic remedies. Even if he is correct in his assertion that he had no effective remedies, this does not in itself re lieve him of the obligation to submit his complaints to the Court within six months from the date of the acts complained of (see application no. 19601/92, decision of 19 January 1995, D.R. 80, p. 46).

In the instant case, the applicant was aware of the destruction of his house as of 11 October 1994. His application was introduced with the Commission on 12 March 1997. It is therefore clear that the application was not lodged within six months of the date of the impugned act. Even assuming that the six month rule could be taken to run as of 20 December 1995 - the date on which the Tunceli Deputy Governor rejected the applicant’s claim for compensation - the application is still time-barred.

Furthermore, the applicant has failed to substantiate the existence of any special circumstances which might have excused him from observing the time-limit laid down in Article 35 § 1 of the Convention.

It follows that the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President