Resolution CM/ResDH(2008) 60 [1]

Execution of the judgment of the European Court of Human Rights

DoÄŸan and others against Turkey

(Application No. 8803/02, judgment of 29/06/2004, final on 10/11/2004, rectified on 18/11/2004, and judgment (just satisfaction) of 13/07/2006, final on 23/10/2006 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the denial to the applicants of access to their property in South-East Turkey since 1994 on security grounds (violations of Article 1 of Protocol No. 1, of Articles 8 and 13) ( see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Turkey ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)60

Information about the measures taken to comply with the judgment in the case of DoÄŸan and Others against Turkey

Introductory case summary

The case concerns the denial to the applicants of access to their property in South-East Turkey since 1994 on security grounds. The applicants alleged that security forces forcibly evicted them from their village in October 1994 and destroyed their property. Many of the applicants moved with their families to other parts of Turkey , where they were living in difficult conditions.

Between 1999 and 2001, the applicants filed petitions with the Turkish administrative authorities requesting permission to return to their village and to use their property. In response to petitions lodged by five of the applicants, submitted in 1999 and 2000, the authorities informed them that their petitions would be considered in the context of the "Return to Village and Rehabilitation Project", a scheme to re-settle villagers evacuated in the context of security operations. In response to their petition of 2001, three of the applicants received letters from the authorities informing them that any eventual return to their village was prohibited for security reasons. The other applicants received no response.

The Court observed that it was unable to determine the exact cause of the applicants ' displacement because of insufficient evidence and the absence of an independent investigation into the alleged events. However, the fact that they were denied access to their village deprived them of all their resources from which they derived their living and thus constituted an interference with their right to the peaceful enjoyment of their possessions. The Court further observed that applicants lived in conditions of extreme poverty, with inadequate heating, sanitation and infrastructure in other areas of Turkey and that the authorities had not provided them with alternative housing, employment or financial help.

While the Court acknowledged the government ' s efforts to remedy the situation of the internally displaced generally, for the purposes of the present case it considered them inadequate and ineffective in that the return to village and rehabilitation project has not been converted into practical steps to facilitate the return of the applicants to their village (violation of Article 1 of Protocol No. 1).

In the light of the above findings, the Court concluded that the refusal of access to the applicants ' home and livelihood constituted a serious and unjustified interference with the right to respect for family life and home (violation of Article 8).

Lastly, the Court found that the applicants did not have an effective remedy in respect of their complaints (violation of Article 13).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

279 500 EUR

-

18 995,40 EUR

298 495,40 EUR

Paid on 12/01/2007

b) Individual measures

In its judgment of 13/07/2006 concerning the just satisfaction, the Court considered that the ability of the applicants to return to their village of Boydaş in South-East Turkey and compensation to be granted for the loss sustained by them during the period in which they were denied access to their homes and land would put the applicants as far as possible in a situation equivalent to the one in which they would have been if there had not been a breach of the Convention. However, it appeared from the parties ' submissions that the applicants were no longer willing to return to their homes and land and to start a new life in Boydaş (see §26 of the judgment). Thus, the Court considered that the compensation for the pecuniary loss in question would be the most appropriate just satisfaction for the applicants (§§48–49 of the judgment) and awarded certain sums in this respect). Therefore, no further individual measure appear to be necessary.

II. General measures

1. Law on Compensation of the Losses Resulting from Terrorism and from the Measures Taken against Terrorism (Law No. 5233 adopted on 17/07/2004, amended by Law No. 5442 of 28/12/2005) and relevant Regulations:

a) The scope of the Law and Regulation : The law provides an alternative possibility to obtain, directly from the administration, compensation for pecuniary damages caused to natural or legal persons as a result of terrorist activities and operations carried out in combating terrorism during the period from 1987 to 2005 (several provisions of the law were amended by Law no. 5442 of 28/12/2005, in particular its time-frame was extended for one year) with a possibility of judicial review of decisions taken in this respect.

The law does not cover the damages settled by the state by other means, damages compensated by the judgments of the Court, damages resulting from social and economical reasons or damages sustained by those leaving their residences voluntarily (reasons not related to concerns of security), damages caused by intentional acts and damages of those who were convicted under Articles 1, 3 and 4 of the Anti-terrorism Law or of aiding and abetting terrorist organisations. On 20/102004 the “ Regulation on the Compensation of the Losses Resulting from Terrorism and from the Measures taken against Terrorism ” entered into force, which lays down the rules governing the functioning of “damage assessment and compensation commissions” and their working methods. The Regulation further lays down the rules relating to methods of determining the amounts of compensation to be awarded.

b) The work carried out by the Damage Assessment and Compensation Commissions : The commissions are composed of 6 experts on finance, public works and settlement, agriculture, sanitation, industry and commerce, as well as a lawyer appointed by the Administrative Board of the Bar Association. There are 76 commissions established in 76 provinces. The Turkish authorities have also submitted the following documents relevant to the work carried out by the commissions:

- List of applications lodged with the Damage Assessment and Compensation Commissions in 76 provinces;

- List of provinces to which compensation funds were transferred;

- List of applications (not exhaustive) in which compensation was granted;

- Examples of decisions of the Commissions and settlement declarations (The reasoning employed by the Commissions in refusing claims of compensation is based on the facts presented by applicants, namely, the incidents at the origin of the compensation claims took place prior to 19/07/1987 or compensation claims had already been reimbursed by the Social Aid and Solidarity Fund. There are also examples of decisions where additional compensation is paid in cases where the previous reimbursements were found to be insufficient. These decisions also indicate that the amounts of compensation awarded are mainly related to physical harm or death. Assessment on property damages could not yet be completed because of the difficulties encountered in holding onsite visits due to harsh winter conditions).

- Information relevant to the working methods of the Commissions and the application procedure before the Commissions (Article 6 of Law No. 5233 lays down the rules to be observed for those wishing to lodge an application with the Commission. The proceedings begin with an application to be lodged by a victim or his/her heir or his/her representative with the competent Commission or to the Deputy Governor. Applications lodged with offices of Governors in other provinces or any other offices or with the Turkish Consulates or Embassies are referred to the competent Commissions).

c) Information on the work carried out by the Commissions : Between April 2006 and January 2008 the Turkish authorities regularly have kept the Committee informed of the figures (latest as of February 2008) in relation to the applications lodged with the Compensation Commissions by virtue of Law No. 5233:

1. Applications lodged with the Compensation Commission under Law No. 5233

Total number of applications

298 879

Number of applications concluded to date

121 395

Number of applications declared admissible (see table 2 below)

79 718

225 088 666 EUR was paid to the applicants in total)

Number of applications rejected (see table 3 below)

41 677

2. Applications admissible

Total number of applications

79 718

Damages due to death

3 588

Damages due to injuries

836Damages due to disability

565Damages on movable and immovable property

17 485

Damages due to loss of livelihood (loss of agricultural activity or animals)

1 604

Damages due to inability to have access to property

47 870

Damages previously paid by other means

7 168

Other

602

3. Applications rejected

Total number of applications

41 677

Request for compensation did not fall under Law No. 5233

20 715

Time-barred

1 194

Lack of relevant documents or information

5 293

Other

14 475

4. Applications lodged in the department of Diyarbakır

Total number of applications lodged

48 616

Number of applications concluded

19 134

Number of applications compensation paid

14 189

(11 288 friendly settlements)

Number of applications rejected

4 945

5. Applications lodged in the department of Tunceli

Total number of applications lodged

16 737

Number of applications concluded

5 470

Number of applications compensation paid

3 091 (2 403 friendly settlements)

2. Project carried out concerning the situation of displaced persons : The Turkish authorities submitted an outline of a project carried out by the Institute of Population Studies at the University of Hacettepe in Ankara . The project concerns issues related to the internally displaced persons (IDP) from south and south-east of Turkey who left their villages after 1980s. The aim of the project is to determine the following points, which will assist the Turkish Government to improve the situation of IDPs in Turkey :

- P opulation movements in the region and its demographic structure;

- Regions where ID P s choose to settle;

- Demographic, social and economic structure of the ID P s;

- Socio-economic structure of the regions from where the ID P s migrate;

- Socio-economic structure of the regions to which the ID P s migrate;

- Reasons of internal displacement;

- P roblems ID P s face at their new settlement;

- Expectations and the degree of satisfaction of those who return

3. The effectiveness of the new remedy acknowledged by the Court (decision of 12/01/2006 in İçyer against Turkey , Application No.18888/02): In this case the applicant complained of the authorities ' refusal to allow him to return to his home and land in the south-east of Turkey . The European Court observed that:

- the compensation commissions established with the entry into force of the Law on Compensation seemed to be operational in 76 provinces in Turkey ;

- there were already 170 000 persons seeking a remedy before these commissions;

- it appears from a substantial number of sample decisions furnished by the government that persons who have sustained damage in cases of denial of access to property, damage to their property or death or injury can successfully claim compensation by using the remedy offered by the Compensation Law.

Referring to its findings in the case of DoÄŸan and others, the Court noted that where it points to structural or general deficiencies in national law or practice it is incumbent on the respondent government to review, and where necessary, set up effective remedies to avoid repetitive cases being brought before it. Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers to take, retroactively if appropriate, the necessary remedial measures.

Noting that in the case of DoÄŸan and others it has already identified the presence of a structural problem with regard to internally displaced persons and indicated possible measures to be taken to put an end to this systematic situation in Turkey, the Court concluded that the Turkish government have taken several measures, including enacting the Compensation Law, and may therefore be deemed to have fulfilled the duty to review the systemic situation at issue and to introduce an effective remedy. Accordingly, the Court rejected the applicant ' s complaints on the ground of non-exhaustion of domestic remedies.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies