FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40076/98

by A.S. and Åž.S.

against Turkey

The European Court of Human Rights ( First Section) sitting on 29 June 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr B. Zupančič ,

Mr T. Pantiru ,

Mr R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 November 1997 by A.S. and Ş.S.  against Turkey and registered on 3 March 1998 under file no. 40076/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Turkish nationals, born in 1946 and 1939 respectively, and living in Y  recik village of Mu  .

They are represented before the Court by Mr Selahattin Kaya , a lawyer practising in Ankara.

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

A. Particular circumstances of the case

On 14 October 1993 security forces burnt down the applicants’ houses along with all the other houses in Y  recik village in the province of Mu  , in south-east Turkey. The village was subsequently evacuated.

The applicants did not apply to the competent authorities for compensation for their losses as they were intimidated by the security forces in the region.

On 13 October 1997 the applicant Abdulhalık Sakık filed a petition with the Mu  Governor’s office. He stated the following:

“In 1993 my house in Y  recik village of our province was burnt down. I would request you to give me a written document from the archives of the state of emergency office or from other institutions which confirms that my house was burnt down.”

The applicant has not received any reply to his petition.

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 526 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 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 complain of violations of Articles 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

As to Article 5, the applicants complain that they were of deprived their security as they were forced to leave their village.

As to Article 6, the applicants submit that they had no right of access to a court to request compensation for the destruction of their properties.

As to Article 8, they maintain that their right to respect for their family life and home was breached as their houses were burnt down by the security forces.

As to Article 13, the applicants also claim that they had no effective remedy for their various Convention claims.

As to Article 1 of Protocol No. 1, the applicants complain that their houses were burnt down by the security forces.

As to the exhaustion of domestic remedies, the applicants state that no remedies are effective in south-east Turkey against the acts of the security forces.

THE LAW

The applicants complain that their houses were burnt down by the security forces as a result of which their rights guaranteed under Articles 5, 6, 8, 13 of the Convention and Article 1 of  Protocol No. 1 to the Convention were violated.

The Court notes at the outset that the applicants have not availed themselves of any domestic remedies in respect of their grievances as they considered that there was no effective domestic remedy. In this respect, the Court recalls 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 (cf. the Akdivar 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 & 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 applied to the Convention organs within six months after the destruction of their villages.

However, 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 could dispense the applicants from the obligation to exhaust domestic remedies. Even if they are correct in their assertion that they had no effective remedies, this does not in itself re lieve them of the obligation to submit their complaints to the Court within six months from the date of the act complained of (cf. No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46).

In the instant case, the acts complained of took place on 14 October 1993, whereas the application was introduced with the Commission on 22 November 1997. It is therefore clear that the application was not lodged within six months after the end of the situation of which the complaint is made. Furthermore, the applicants have failed to substantiate the existence of specific circumstances which might have prevented them 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 Elisabeth Palm Registrar President