FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28517/95 by İsmet ÇELEBİ 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 29 May 1995 and registered on 12 September 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 1939 and living in Istanbul. He is represented before the Court by Mr Ahmet AkkuÅŸ , a lawyer 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

The applicant used to live and work as a farmer in the Molla Hüseyin hamlet of the Pınarbaşı village attached to the Bismil district of the province of Diyarbakır .

On account of terrorist activities in the state of emergency region the villagers were requested to be village guards and the villages of those who did not agree to be village guards were evacuated and destroyed by security forces.

The applicant was also requested to be a village guard. As he did not agree he received a warning from the security forces in the region.

On 14 November 1994 the commander of the Gendarme Station in the Ahmetli village arrived in the applicant’s village accompanied by soldiers and requested the applicant either to agree to be a village guard or to leave the village.

On 30 November 1994 the applicant, along with 13 members of his family, left his home and village since he was continually threatened with death.

The applicant arrived in his son’s house in Istanbul and telephoned his brother who lived in his village. He learned that his home and its contents had been destroyed by security forces in the evening of the day he had abandoned his village.

The applicant and his family are currently living in Istanbul.

2. Government’s version of the facts

The authorities began an investigation immediately after they had learned of the applicant’s allegations. In this respect, on 27 February 1998 the Gendarme Station Commander of the Ahmetli village took statements from the applicant’s brothers, Mehmet Çelebi and Alaattin Çelebi , who are currently living in the applicant’s village.

Mehmet Çelebi stated:

“I know Ä°smet Çelebi . He is my elder brother. Until 1994 we lived together in the same village. At the relevant time, his son Murat Çelebi went to Istanbul to find work. We learned that he had joined the mountain cadre of the PKK. I do not know whether my brother was involved in the PKK terrorist organisation. After his son had [joined the PKK] he wanted to emigrate to Istanbul. He did not tell us why he wanted to go Istanbul. He was thinking of finding a proper and better job. In November 1994 he emigrated to Istanbul of his own will. There has never been a [military] operation in our village neither before nor after [November 1994]. Security forces did not force us to abandon our village. Nobody beat or threatened us in order to force us to evict the village. My brother Ä°smet Çelebi was neither insulted nor beaten by any member of the security forces. We are not village guards. We were not subjected to pressure to agree to be village guards. We are living in peace in our village. It is not true that my brother Ä°smet left the village on account of the pressure or torture inflicted on him since he did not agree to be a village guard. His house was neither burned nor destroyed by the security forces. His house is in a good state. However, I removed the wooden parts of his house (doors, windows and the roof) two years after he had left the village, considering that [my brother] would not return to the village. Some of the wood is in my stable. I used some of them. My brother Ä°smet Çelebi knows that I removed the wooden parts of [his house] and I do not understand why he had slandered [the security forces]. However, I consider that he might have been tempted to lie by the PKK or his son in the mountain [cadre]. None [of the houses] has been burned or destroyed. Nobody was beaten, insulted or tortured in our village. We were not forced to agree to be village guards and we are still not village guards. I can return the wooden parts of my brother’s house if he wants. They are at my place. I removed the wooden parts in order to protect them from decaying. My brother has 150 acres of land in the village. We are using his land and paying him a rent. If my brother wants to return to the village he may live with us. We are not under pressure of the security forces...”  

Alaattin Çelebi stated:

“ İsmet Çelebi is my elder brother. We are currently living in the Molla Hüseyin hamlet of the Pınarbaşı village attached to the Bismil district in the province of Diyarbakır . We are dealing freely with our works in the village. My brother abandoned the village four years ago of his own will and emigrated to Istanbul. I do not know why he emigrated. In 1994 his son Murat Çelebi went to Istanbul to work and later joined the mountain cadre of the PKK. Following this incident my elder brother emigrated to Istanbul. He emigrated of his own will. He was not subjected to pressure or oppression by security forces. There has not been an operation before or after November 1994. We are not village guards. It is a lie that we were subjected to pressure to agree to be village guards. We still are not village guards. Me and my brother Mehmet Çelebi are taking care of our elder brother İsmet Çelebi’s house and fields since he emigrated to Istanbul. Me and Mehmet disassembled the wooden parts of İsmet Çelebi’s house. The other parts of the house are currently as they used to be [in the past]. My brother Mehmet and I are cultivating [ İsmet ]’s fields and sending the rent to him. It is absolutely a lie that we are subjected to pressure or oppression by security forces. Everybody is living freely and getting on with his own work. My elder brother İsmet Çelebi left the village on his own will. The [allegation] that he was subjected to pressure to agree to be a village guard is a lie...”

On 1 March 1998 the Ahmetli District Gendarme Station Commander and the Deputy Commander went to the applicant’s village to conduct a survey of the scene of the incident. A survey minute was drawn up and signed by the Commander, the Deputy Commander, the applicant’s two brothers, Mehmet and Alaattin Çelebi , and three inhabitants of the village. The survey minute stated:

“On 1 March 1998 [we] went to [ İsmet Çelebi ]’s village in order to carry out an investigation following his application to the European Commission of Human Rights. [ İsmet Çelebi ]’s house was found. [We], along with his brother Mehmet Çelebi , arrived to the house İsmet Çelebi had abandoned. Subsequent to the examination, it was observed that no demolition, burning or destruction had occurred. Mehmet Çelebi stated that he had disassembled the wooden doors, windows and the roof in order to protect them from decaying. It was further observed that some of the disassembled materials were used [by Mehmet Çelebi ], some were kept in his stable, the wooden materials were in a good state and did not bear any trace of fire. The villagers and his brothers were asked about the alleged acts complained of. They all stated that no operation had been carried out [in the village] and no destruction, burning or violence had occurred. [They further stated] that there was no village guard in the village and nobody was forced to agree to be a village guard. According to the statements of his brothers and the villagers it was understood that [ İsmet Çelebi ] had left the village on his own will...”

On 1 March 1998 the Ahmetli District Station Commander sent a letter to the Diyarbakır Provincial Gendarme Commanding informing it of the conclusion of the investigation carried out. He stated that on 14 March 1994 no operation was carried out in the Molla Hüseyin hamlet of the Pınarbaşı village, the villagers were not forced to agree to be village guards and there was no village guard in the village at the present time. He further stated that the records kept by the authorities indicated that [ İsmet Çelebi ] had never applied to or lodged complaints with the [administrative or judicial] authorities.

On 2 March 1998 the Bismil Public Prosecutor, accompanied by an expert and the applicant’s brother Alaattin Çelebi , conducted a survey of the applicant’s house. He noted in his report that the applicant’s house had not been not destroyed or burned but its wooden parts had been removed and used by his brother Alaattin Çelebi . He further noted that 24 pieces of wooden materials removed from the applicant’s house were kept in his brother’s stable and that they were in good condition and usable. On the same day, the Public Prosecutor took statements from two inhabitants of the applicant’s village, Mehmet Demir and İzzet Oral. They told the Public Prosecutor that the security forces had not destroyed the applicant’s house but his brother had removed its wooden parts. They further stated that the applicant had left the village of his own will as well as on account of the pressure from the PKK.

On 2 March 1998 the Bismil Public Prosecutor and the District Governor sent letters to the Bismil Gendarme Unit Command informing it that the applicant had not lodged an application as regards his complaints that he was forced to agree to be a village guard and that his house was destroyed by the security forces.

On 10 March 1998 the Bismil Public Prosecutor issued a decision to discontinue the criminal proceedings against the Ahmetli Station Commander, Rahmi Canlı , subsequent to the investigation carried out into the applicant’s allegations.

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 complains of violations of Articles 2, 3, 4 § 2, 5, 6, 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 § 1 of Protocol No. 4 to the Convention.

The applicant complains under Article 1 Protocol No. 1 to the Convention that he was deprived of his right to peaceful enjoyment of his possessions since his house was destroyed and he was hindered from cultivating his fields.

The applicant contends under Article 2 of the Convention that his right to life was violated as he was threatened with death by the security forces.

He maintains under Article 3 of the Convention that he was subjected to inhuman treatment since he was forcibly evicted from his village by the security forces.

The applicant complains under Article 4 § 2 of the Convention that he was forced to agree to be a village guard without any payment.

He submits under Article 5 of the Convention that he was deprived of his right to security of person by the security forces on account of the destruction of his property.

The applicant alleges under Article 6 of the Convention that there are no effective remedies in domestic law and that there is an administrative practice of not respecting fundamental human rights in the state of emergency region of Turkey.

The applicant contends under Article 8 of the Convention that his right to respect for his home and family life was violated on account of the destruction of his house.

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 house.

The applicant submits that the destruction of his property constitutes a violation of his rights under Article 2 § 1 of protocol No. 4 to the Convention.

The applicant maintains under Article 14, in conjunction with the above-mentioned Articles of the Convention, that he was deprived of his rights on account of his Kurdish origin.

THE LAW

The applicant complains of the alleged forced eviction of him and his family from their village and the destruction of his house by the security forces since he did not agree to be a village guard. He invokes Articles 2, 3, 4 § 2, 5, 6, 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 2 § 1 of Protocol No. 4 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 authorities the complaints brought before the Court. In this connection, the Government point out that according to the records kept by the administrative and judicial authorities the applicant did not lodge any application concerning his allegations before the Court.

The Government further submit that in the present case the six months’ period must be taken to run from the date of the alleged acts since the applicant did not apply to the national authorities with a view to exhausting domestic remedies in respect of his Convention grievances. They maintain that, bearing in mind the fact that the acts complained of were alleged to have occurred on 14 November 1994 and that the applicant filed his application with the Commission on 29 May 1995, the application is time-barred within the meaning of Article 35 § 1 of the Convention.

The applicant contends in reply that he was not required to pursue any domestic remedy since any purported remedy is illusory, inadequate and ineffective. He 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 in south ‑ east Turkey. He further alleges that the security forces requested him to leave his village within 10 days from 14 November 1994 and that his house was destroyed on 31 November 1994 when he left the village. The applicant maintains that the six months’ period should be calculated as of 31 November 1994 and therefore the application should be considered to have been lodged within the time-limit since he applied to the Commission on 29 May 1995.

The Court does not consider it necessary to decide whether the applicant can be considered to have complied with the requirements of Article 35 § 1 of the Convention since the application should be declared inadmissible as being manifestly ill-founded.

As regards the merits of the case, the Government submit that when the authorities learned of the applicant’s allegations they conducted a meticulous investigation into the alleged events. The authorities found that the applicant’s house had not been destroyed but only its wooden parts had been taken down and used by his brother Mehmet Çelebi . Furthermore, the applicant’s brothers are currently cultivating his fields and paying him a rent. The applicant’s brothers and villagers told the Public Prosecutor that nobody had been forced to agree to be a village guard by the security forces. Nor was the applicant forced to leave the village on account of his refusal to be a village guard. Moreover, according to the records kept by the military authorities the security forces did not conduct any operation in the village on 14 November 1994. The Government finally claim that the application should be rejected as being manifestly ill-founded.

The applicant disputes the Government’s arguments. He alleges that the witnesses, namely his brothers and the villagers, do not tell the truth since they fear persecution by security forces bearing in mind the fact that village destruction is a frequent occurrence in South East Turkey. He therefore maintains his account of events and requests the Court to declare his application admissible .

The Court notes that it is confronted with a dispute concerning the exact course of the alleged events in November 1994. In this regard, the Court considers that it must reach its decision on the basis of the available evidence submitted by the parties (see the Pardo v. France judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28).

In the Court’s opinion, the documents produced by the applicant do not provide sufficient prima facie evidence of the accuracy of his version of events. On the contrary, the photos submitted by him indicating the current state of his house clearly show that the house was not burned down since the house only lacks its roof and windows and does not show any trace of having been set a light. The statements made by the applicants’ brothers as well as the villagers shed light on the events alleged to have occurred. The applicant’s brother, Mehmet Çelebi , admits that he had taken down the roof and windows in order to protect them from decay. In addition, subsequent to the survey conducted in the applicant’s village the Public Prosecutor of Bismil found that the wooden materials removed from the applicant’s house were kept in Mehmet Çelebi’s stable and were still in good state. The Court therefore considers that the applicant failed to lay the basis of an arguable claim that his house was burned or destroyed by the security forces.

As regards the alleged forced eviction of the applicant from his village, the Court points out that              the applicant’s brothers and the villagers told the Bismil Public Prosecutor and the military authorities that nobody in the village had been forced to agree to be a village and that the applicant had left the village of his own will. Bearing in mind the fact that the applicant did not submit any evidence which is capable of refuting the Government’s, the Court considers that the applicant also failed to corroborate his allegation that he was forced to leave his village by the security forces since he did not agree to be a village guard.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President