SECOND SECTION

CASE OF DÄ°LEK v. TURKEY

(Application no. 31845/96)

JUDGMENT

(Friendly settlement)

STRASBOURG

17 June 2003

This judgment is final but it may be subject to editorial revision.

In the case of Dilek v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze , Mrs A. Mularoni , judges , Mr F. Gölcüklü, ad hoc judge , and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 27 May 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 31845/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Kemal Dilek (“the applicant”), on 12 April 1996.

2 . The applicant was represented by Mrs N. Kaplan Akkuş, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3 . The applicant complained about the destruction of his house by security forces in the Bingöl province, in south-east Turkey. He relied on Articles 3, 5, 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

4 . Following communication of the application to the Government by the Commission, the case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case. (Rule 28 of the Rules of Court). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court.)

5 . On 30 May 2000, having obtained the parties’ observations, the Court declared the application admissible in so far as it had been communicated to the Government.

6 . On 18 February 2003, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 27 February 2003 and on 12 March 2003 the Government and the applicant respectively submitted formal declarations accepting a friendly settlement of the case.

THE FACTS

7 . The applicant was born in 1930 and lives in Marl- Haim , Germany.

A. Applicant’s version of the facts

8 . In 1974 the applicant, after having worked for ten years as a labourer in Germany, bought land in the Değirmen hamlet of the Çayağzı village, in the Yayladere district of Bingöl and built a house on it. The applicant and his family went to the house each summer. The land was cultivated by Ş.T ., who gave half of the annual revenue from the land to the applicant. Ş.T . also lived in the house when the applicant was not there.

9 . In 1994 security forces carried out operations in the region. Gunfire discharged by security forces from helicopters destroyed the roof of the applicant’s house. Thereafter, security forces forcibly evicted Ş.T . from the applicant’s house.

10 . On 8 December 1995 an inhabitant of the hamlet, H.D., informed a relative of the applicant living in İstanbul , S.G., that the applicant’s house had been burned down. S.G. subsequently informed the applicant about the destruction of his property.

11 . On 14 December 1995 the applicant went to the hamlet and saw that his house and its contents had been burned. He took photographs and made a video recording of his house. He was informed by the mayor of the village ( muhtar ), H.T., and by other villagers that there had been clashes between security forces and terrorists near the hamlet and that two days after the clashes his hou se had been burned down because it had been used by terrorists.

12 . On 10 January 1996 the applicant filed a petition with the Public Prosecutor’s office in Istanbul for submission to the Public Prosecutor’s office in Bingöl . He requested an investigation into the destruction of his house and its contents by security forces.

13 . The applicant did not pursue any further domestic remedy.

B. Government’s version of the facts

14 . Subsequent to the receipt of the applicant’s petition concerning his request for an investigation, the Bingöl Chief Public Prosecutor declined jurisdiction ratione loci and sent the applicant’s petition to the Yayladere Public Prosecutor’s office.

15 . On 31 December 1996 the Yayladere Chief Public Prosecutor issued a decision of non ‑ jurisdiction stating that the impugned incident should be investigated by the Chief Public Prosecutor at the Diyarbakır State Security Court since it concerned a terrorist act. The Public Prosecutor noted that the applicant’s house had been destroyed during clashes between terrorists and security forces. He noted however that the perpetrators could not be identified.

16 . The local authorities carried out an investigation into the destruction of the applicant’s house. In this respect, on 25 February 1998 gendarmes from the Yayladere Central Gendarme Command went to the applicant’s hamlet to carry out a survey of the scene of the incident. After having viewed the state of the applicant’s house, the gendarmes drew up a scene of incident report. They noted that the roof of the applicant’s house had been destroyed, wooden parts of the house had been burned, the walls were in good condition and the house was empty. They further noted that the house had been destroyed during clashes between the security forces and terrorists in the region.

17 . On 25 February 1998 the Yayladere Central Gendarme Station Commander took statements from the inhabitants of the applicant’s village. The mayor of the village, (muhtar) , Mr Mehmet Dilek, stated that in 1994 security forces had carried out an operation against terrorists in the region and that there had been clashes between security forces and terrorists one kilometre away from the village over a 24-hour period. He stated that he was sure that the house had been destroyed as a result of these clashes but he did not know by whom. Mr Şükrü Taylan stated that the house had been destroyed as a result of the clashes between security forces and terrorists. Mr Yusuf Yıldız stated that the applicant’s house had been destroyed because terrorists used to stay there. Mr Ali Gür stated that the house had been burned down on the ground that there might have been terrorists inside.

18 . The investigation into the destruction of the applicant’s house is pending before the Chief Public Prosecutor’s office at the Diyarbakır State Security Court since the perpetrators are still unknown.

THE LAW

19 . On 27 February 2003 the Court received the following declaration from the Government:

“ 1. The Government regret the occurrence, as in the present case, of individual cases of destruction of home, property and possessions resulting from the acts of agents of the State in south ‑ east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures. It is accepted that such acts and failures constitute a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 and, given the circumstances of the destruction and the emotional suffering entailed, of Article 3 of the Convention . The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the individual rights guaranteed by these Articles – including the obligation to carry out effective investigations – are respected in the future. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of destruction of property in circumstances similar to those of the instant application and in more effective investigations being carried out.

2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of EUR 25,000 ( twenty-five thousand euros ) with a view to securing a friendly settlement of his application registered under N o 31845 /96 . This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant and/or his duly authorised representative. This sum shall be payable within three months from the date of the notification of the judgment delivered by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

3. The Government consider that the supervision by the Committee of Ministers of the Council of Europe of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will continue to be made in this context. To this end, necessary co ‑ operation in this process will continue to take place.

4. Finally, the Government undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment.”

20 . On 12 March 2003 the Court received the following declaration signed by the applicant’s representative:

“1. In my capacity as the representative of the applicant, I have taken cognisance of the terms of the declaration of the Government of Turkey and of the fact that they are prepared to make to the applicant, Mr Kemal Dilek, an e x gratia all-inclusive payment of 25,000 EUR (twenty-five thousand euros) with a view to concluding a friendly settlement of his case that originated in application no. 31845/96. This sum, which also covers the costs and expenses related to the case, will be paid in accordance with the terms stipulated in the said declaration within three months after notification of the Court’s judgment delivered pursuant to Article 39 of the European Convention on Human Rights.

2. Having duly consulted the applicant, I accept that offer and he, in consequence, waives all other claims against the Republic of Turkey in respect of the matters that were at the origin of the application. We declare that the case has been settled finally and we undertake not to request the reference of the case to the Grand Chamber pursuant to Article 43 § 1 of the Convention after the delivery of the Court’s judgment.

3. This declaration is made within the scope of the friendly settlement which the Government and I, in agreement with the applicant, have reached.”

21 . The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

22 . Accordingly, the case should be struck out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to strike the case out of the list;

2. Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber.

Done in English, and notified in writing on 17 June 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa Registrar President