In the case of Artun and Others v. Turkey,
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr B.M.
Zupanèiè, President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr E.
Myjer, judges,
and Mr V. Berger,
Section Registrar,
Having deliberated in private on 12 January 2006,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 33239/96) 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 five Turkish nationals, Ali Artun (who was replaced
by his heirs Selvi Artun and Kemal Artun, Kenan Artun, Ercan Artun, Nimet Artun
upon his death on 9 August 2000), Hıdır Sevim (whose application has
been pursued by Ali Sevim upon his death on 24 January 2005), Sevim Güloğlu, Sinan Güloğlu, Zeynel Güloğlu and Mazlum Artun (“the applicants”),
on 5 September 1996.
2. The applicants, who had been
granted legal aid, were represented by Mr Ö. Kılıç, a lawyer
practising in Istanbul. The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the Convention
institutions.
3. The applicants alleged that
State security forces had destroyed their homes and possessions and had forced
them to leave their place of living in Tepsili village of Ovacık district
in Tunceli province. They alleged a violation of Articles 3, 5, 6, 8, 13, 14
and 18 of the Convention and Article 1 of Protocol No 1.
4. The application was
transmitted to the Court on 1 November 1998, when Protocol No. 11 to the
Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was
allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 2 September 2003, the Court declared the application admissible.
7. The applicants and the
Government each filed observations on the merits (Rule 59 § 1).
8. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was
assigned to the newly composed Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The
applicants are all Turkish nationals. They were living in Tepsili village at
the time of the alleged events giving rise to the present application. In a
letter dated 6 July 2001 the applicants’ lawyers informed the Court that
one of the applicants, namely Ali Artun, had died on 9 August 2000 and that his heirs Selvi Artun, Kemal Artun, Kenan Artun, Ercan Artun, Nimet Artun wished
to pursue the application. Hıdır Sevim also died on 24 January 2005 and his heirs named Ali Sevim to pursue the application on their behalf. The
facts of the case are in dispute between the parties and may be summarised as
follows.
A. The applicants’ version of the
facts
10. Until October 1994 the
applicants all lived in Tepsili, a village of Ovacık district in Tunceli
province, in the then state-of-emergency region of Turkey. In 1994, terrorist
activity was a major concern in this area. Since the 1980s a violent conflict
had been going on in the region between the security forces and sections of the
Kurdish population in favour of Kurdish autonomy, in particular members of the
PKK (Workers’ Party of Kurdistan). The inhabitants of the applicants’
village were suspected of “aiding and abetting terrorists”; and accordingly
they were strictly and frequently controlled by the gendarmes stationed near
the village.
11. On 3 October 1994 security forces surrounded Tepsili and assembled the inhabitants in the village
square. Using curse words, they told the villagers that the village
would be evacuated at once with no possibility of return. The applicants took
what they were able to carry with them and left the village. Immediately after
the evacuation, the soldiers set the houses and the crops on fire.
12. Ali Artun, Mazlum Altun,
Zeynel Güloğlu and Hıdır Sevim moved temporarily into a
prefabricated State disaster housing complex close to Ovacık, while Sinan
Güloğlu moved to Çakmaklı village.
13. Following the incident, the
applicants filed individual petitions with the Ovacık Public Prosecutor’s
office complaining about the burning down of their village by gendarmes. The
applicants noted their temporary addresses as the reply address for their
petitions.
14. As the case concerned an
investigation into alleged acts of the security forces, the Ovacık Public
Prosecutor issued a decision of non‑jurisdiction and referred the
petitions to the office of the District Governor in Ovacık in accordance
with the Law on the Prosecution of Civil Servants (Memurin Muhakematı
Kanunu).
15. The District Governor sent
a letter to the Ovacık Gendarmerie Headquarters and requested information
about the applicants’ allegations.
16. In a letter of 1 November 1994 the Gendarmerie Commander informed the District Governor that the security
forces had not burned any house during their operations in the area.
Accordingly, on 9 December 1994 the Ovacık Administrative Council issued a
decision to discontinue the criminal proceedings against the gendarmes.
17. On 25 October 1995 the Ovacık District Governor sent a letter to the applicants. Relying on the
Ovacık Gendarmerie Commander’s letter of 1 November 1994, he explained that he was unconvinced by their allegations. He further explained that
pursuant to the established case-law of the Supreme Administrative Court (Danıºtay),
no inquiry was possible unless the identity of the accused civil servant were
specified. He therefore stated that the authorities would not initiate an
investigation into the alleged events.
18. On 15 February 1996 the District Governor’s above letter was served upon one of the applicants Ali Artun,
who is the former mayor (muhtar) of the evacuated Tepsili village. The
cover letter stated that the authorities were unable to find out the new
addresses of the applicants and that therefore Ali Artun, as the mayor of the
village, had been required to forward it to the other petitioners. The
applicants learned about the District Governor’s letter through their relatives
and acquaintances at a much later stage.
B. The Government’s version of the
facts
19. In 1994 members of the PKK
started a propaganda campaign for the organisation in the villages of Ovacık
district. They kidnapped young men from these villages and forced them to join
the organisation. The PKK militants issued threats against the villagers and
harassed them. The inhabitants of the villages left their homes as a result of
the pressure exerted by the PKK.
20. The investigation carried
out by the authorities revealed that the applicants’ houses had not been burned
by the security forces but by terrorists wearing military uniforms. In their
statements to the investigating authorities, the applicants failed to indicate
the identity of the perpetrators of the alleged crime.
C. The documents submitted by the
parties
21. The parties submitted
various documents with a view to substantiating their claims. These documents,
in so far as they are relevant, can be summarised as follows.
1. The documents submitted by the
applicants
(a) Damage description protocol
dated 29 June 2001
22. The applicants, Sinan
Güloğlu, Süleyman Ersiz, Mazlum Artun, Zeynel Güloğlu and Ercan Artun
submitted a protocol dated 29 June 2001 in which they claimed that Zeynel
Güloğlu had suffered financial damages because of the destruction of his
beehives and 1,000 kilograms of honey in Tepsili village.
(b) Annual Reports of the Human
Rights Foundation (“the TIHV”)
23. The Human Rights Foundation
is a non-governmental organisation with its head office in Ankara, Turkey. Its 1993 Report stated that, from 1990 to 1993, more than 913 villages and hamlets had been
evacuated. The 1993 Report maintained that village evacuations had accelerated
in 1993, mostly targeting the villages whose inhabitants refused to serve as
village guards.
24. The 1994 Report of the TIHV
argued that the Government’s policy was to claim that the evacuations and
eventual destructions were caused by PKK terror, poverty and the forces of
nature. According to the same report, some 50 to 60 villages were burned down
in each of the provinces subject to the emergency rule.
25. The 1995 Report maintained
that more than 400 villages had been evacuated in 1995. According to the 1996
Report, the State-of-Emergency Regional Governor once mentioned that a total of
918 villages and 1,767 hamlets had been evacuated for various reasons, although
never admitting that evacuations had been carried out by security forces.
26. The 1997 and 1998
Reports described the Government’s policy of evacuating villages as a
systematic “internal security operation” applied throughout the 1990s.
(c) Excerpts from “Burned-down /
Evacuated Villages and Migration”, a book published by the Human Rights
Association
27. The excerpts gave a comprehensive
list of burned-down and/or evacuated villages from February 1990 to January
1999. The list did not make any reference to Tepsili as having been evacuated
and destroyed.
28. The excerpts contained
several articles reproduced from a daily newspaper Ülkede Gündem,
relating to the evacuation of villages and its detrimental effects on the
displaced persons. The articles stressed that numerous villagers had filed
petitions with the State authorities, complaining that their villages had been
burned down by security forces.
29. The articles also
emphasized that the Government’s public declarations, which appeared to allow
displaced villagers to return to their villages, were unreliable. Whenever
villagers had attempted to do so, they were physically denied access to their
villages.
(d) The report of 14 January 1998 of
the Turkish Grand National Assembly’s Commission of Inquiry on the measures to
be taken in order to address the problems of the persons displaced following
the evacuation of settlement units in east and south-east Anatolia
30. This report was prepared by
a Commission of Inquiry composed of ten members of parliament. According to the
report, in 1993 and 1994 the inhabitants of 905 villages and 2,923 hamlets were
evicted and forced to move to other regions of the country (p.13).
31. The report included a
statement by Mr Doğan Hatipoğlu, a former governor of Diyarbakır. Mr Hatipoğlu explained that, during his office, occasional village
evacuations by military authorities were brought to his attention. He stated
that – although very rarely – he had received complaints about village
burnings. According to Mr Hatipoğlu, it was inconceivable to assert that
all the villages were vacated due to PKK coercion. He alleged that the
Government had failed to take the necessary measures for a healthy resettlement
of displaced persons (p.13).
32. The report also referred to
the “Human Rights Report – Turkey”, prepared and submitted to the Commission of
Inquiry in 1995 by Mr Yavuz Önen, the chairman of the Human Rights
Foundation. This latter report dedicated a chapter to immigrants and evacuated
villages. It argued that, in 1995, the practice of evacuation of villages and
hamlets was widespread. Many houses in villages were either destroyed or made
uninhabitable. People were forced to emigrate from the region and pressure was
exerted on the inhabitants until they left their villages. In early 1995 there
was practically no village or hamlet inhabited except those whose inhabitants
agreed to become village guards (p.19).
33. The report of the
Commission of Inquiry also referred to the speech delivered at the Turkish
Grand National Assembly by Mr Salih Yıldırım, a deputy from
ªırnak, on 3 June 1997 on the question of evacuated villages. Mr
Yıldırım stated, inter alia, that the villages were
evacuated either by the PKK, in order to intimidate those who opposed it, by
the authorities since they were unable to protect the villages, or because the
inhabitants of those villages refused to become village guards or were suspected
of having aided the PKK (p. 20).
34. In
conclusion, it was recommended in the report that the inhabitants of the
settlement units should be re-housed in the provinces, districts or central
villages – rather than hamlets – close to the area where they used to live and
that necessary economic measures should be taken with a view to providing
employment to the inhabitants of the region, priority being given to the
immigrants.
2. The documents furnished by the
Government
(a) Report of April 2004 concerning
the property owned by each of the applicants
35. This report was prepared by
ªahin Özyurt who is an investigator for human rights abuses. It aims at
establishing the property owned by each of the applicants. It appears that Ali
Artun owned land measuring 16,234 square metres from which he could derive
128,000,000 Turkish liras’ (TRL) annual income at the relevant time. Total
value of his property was TRL 470,000,000. Mr Artun was not subscribed to
TEDAª, meaning that he did not have electricity at home. According to the
official records, he did not have any commercial activity given that he did not
pay any tax before 1994.
36. Mazlum Artun owned 17,406 square
metres of land according to the land registry records. It was estimated that he
could derive TRL 224,000,000 annual income at the relevant time. The value
of his property was estimated around TRL 826,000,000. It further appeared that
he owned a “green card” given to very poor people for medical care and that he
received TRL 3,000,000 from the Ovacık District Governor’s office for his
treatment.
37. Hıdır Sevim owned
a total of 26,520 square metres of land according to the land registry records.
It was estimated that he could derive TRL 224,000,000’s annual income at
the relevant time. The value of his property was estimated around TRL
400,000,000. It further appeared that he did not have any “private forest” as
alleged, but was only allowed to do timber felling. Such privilege was only
given to poor people who do not have sufficient income.
38. Sinan Güloğlu lived in
Çakmaklı village of Ovacık. He owned 625 square metres of land
according to the land registry records. He did not live in Tepsili but only had
beehives there. He received a flock of sheep and TRL 176,000,000 in aid
from the Ovacık District Governor’s office. Since 13 May 1999 he also had a green card.
39. Zeynel Güloğlu also
lived in Çakmaklı village of Ovacık. He owned a total of 992 square metres
of land according to the land registry records. He was living in the house of
Musa Arat as a tenant and had beehives in Tepsili. He received TRL 75,000,000
in aid from the Ovacık District Governor’s office. Since 15 January 2004 May 1999 he had a green card.
(b) Seyit Ali Aktaº’s statements
dated 10 March 2004, taken by two gendarme officers
40. The witness is a resident
of Tepsili village. His statements were taken in order to determine the
situation of Ali Artun and Hıdır Sevim who had lodged an application
with the Court. The witness stated that the village had been evacuated on
account of terrorist activities and lack of security in the region. The
villagers all moved to other villages or provinces and at the relevant time
nobody lived in Tepsili. The houses in the village had fallen into ruin because
of natural forces. There was no electricity, school or telephone in the
village. Ali Artun left the village and moved to Istanbul where he died in 2000.
Hıdır Sevim moved to Genze district of Izmit province where he lives
with his family.
(c) Joint statements by
Hıdır Güloğlu and Seyit Ali Aktaº, taken on 10 March 2004 by two gendarme officers
41. The witnesses
Hıdır Güloğlu and Seyit Ali Aktaº are inhabitants of
Çakmaklı and Tepsili villages, respectively. They stated that the
applicant Sinan Güloğlu did not reside but had beehives in Tepsili. Nor
did he have any land in Tepsili. They further claimed that Sinan Güloğlu
currently lived in Çakmaklı, which village had an open road, water,
electricity and telephone services.
42. As regards the applicant
Zeynel Güloğlu, the witnesses noted that he lived in the house of Musa
Arat as a tenant in Tepsili but that he did not own any land in the village. He
earned his living by stockbreeding. The witnesses also stated that Zeynel
Güloğlu currently lived in Kandolar neighbourhood of Ovacık district.
II. RELEVANT DOMESTIC LAW
43. A full description of
the relevant domestic law may be found in Yöyler v. Turkey (no.
26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no.
23423/94, §§ 93-106, 21 February 2002).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY
OBJECTION
44. In their supplementary
observations dated 29 April 2005, the Government raised a preliminary objection
concerning non-exhaustion of domestic remedies in the light of the ‘Law on the
Compensation of Losses Resulting from Terrorist Acts and the Measures Taken
against Terrorism’ adopted on 14 July 2004. This Law provided for a sufficient
remedy capable of redressing the Convention grievances of the applicants who
had suffered damages during the authorities’ struggle against terrorism. The
Government therefore asked the Court to suspend the examination of this
application and to require the applicants to avail themselves of the new remedy
introduced in domestic law.
45. The applicants disputed
the Government’s objection and argued that they could not be required to
exhaust a new remedy after the admissibility decision of the Court.
46. The Court recalls that in its
admissibility decision of 2 September 2003 it has already held that the
applicants were not required to pursue any further remedy in domestic law given
the lack of an effective investigation into their complaints. It notes that
this objection was raised after the application was declared admissible. On
that account, the Government may be considered in principle estopped from
raising their objections to admissibility at this stage (Rule 55 of the Rules
of Court; see inter alia, Amrollahi v. Denmark, no. 56811/00, §
22, 11 July 2002; and Nikolova v. Bulgaria [GC], no. 31195/96, §
44, ECHR 1999-II). The Government’s objection cannot, therefore, be taken into
account at this stage of the proceedings.
II. ALLEGED VIOLATION OF ARTICLES
3 AND 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
47. The applicants alleged that
their forced eviction from Tepsili village and destruction of their houses and
possession by the State security forces had given rise to breaches of Articles
3 and 8 of the Convention and Article 1 of Protocol No. 1, which read
in so far as relevant as follows:
Article 3
“No one shall be subjected to torture
or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right
to respect for his private and family life [and] his home...
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not,
however, in any way impair the right of a State to enforce such laws as it
deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”
48. The applicants submitted that
their forcible eviction from their homes and deliberate destruction of their
property by the State security forces constituted a violation of their right to
peaceful enjoyment of their possessions and their right to respect for their
family life. They also claimed that the circumstances surrounding the destruction
of their property and their forcible eviction from their village also amounted
to inhuman and degrading treatment.
49. The Government denied the
factual basis of the applicants’ complaints and submitted that they were
unsubstantiated. In this connection, they maintained that the applicants’
village had never been evacuated or burned down by the security forces. The
applicants had left their village because of the intense terrorist activities
carried on by the PKK in the region. The investigation conducted by the
authorities had revealed that the applicants’ houses might have been burned
down by terrorists wearing military uniforms.
50. The Court is confronted with a dispute over the exact cause of the
events giving rise to the present application. Accordingly, it must have regard
to the general situation prevailing in the region at the time of the alleged
events. In this connection it observes that at the relevant time violent
confrontations had taken place between the security forces and members of the
PKK in the state-of-emergency region of Turkey. This two‑fold violence
resulting from the acts of the two parties to the conflict forced many people
to flee their homes. Moreover, the national authorities had evicted the
inhabitants of a number of settlements to ensure the safety of the population
in the region (Doğan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 142,
ECHR 2004‑...(extracts)). Yet the Court has also
found in numerous similar cases that security forces deliberately destroyed the
homes and property of certain applicants, depriving them of their livelihood
and forcing them to leave their villages in the state‑of‑emergency
region of Turkey (see, among many others, Akdivar and Others v. Turkey
(judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV;
Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998‑II; Menteº
and Others v. Turkey, judgment of 28 November 1997, Reports 1997‑VIII; Bilgin v. Turkey, no. 23819/94, 16 November 2000, and Dulaº
v. Turkey, no. 25801/94, 30 January 2001).
51. This being so, it is to be
pointed out that both the European Commission of Human Rights and the Court
have previously embarked on fact finding missions in similar cases from Turkey
where the State security forces were allegedly the perpetrators of the unlawful
destruction of property (see, among many others, the above cited judgments of Akdivar
and Others and Yöyler; İpek v. Turkey, no. 25760/94, ECHR 2004‑...). In those cases, the main reason which prompted the Convention
institutions to have recourse to such an exercise was their inability to
establish the facts in the absence of an effective domestic investigation.
52. It is a matter of regret for
the Court that it is unable to attempt to establish the facts of the present
case by embarking on a fact finding exercise of its own by summoning witnesses.
However, it considers that such an exercise would not yield sufficient evidence
capable of establishing the true circumstances of the case, given that the
passage of a substantial period of time, almost eleven years in the instant
case, makes it more difficult to find witnesses to give testimony and takes a
toll on a witness’ capacity to recall events in detail and with accuracy (see İpek,
cited above, § 116). Accordingly, the Court must reach its decision on the
basis of the available evidence submitted by the parties (see Pardo v.
France, judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28,
cited in Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004).
However, it must be wary of the fact that the documentary material provided by
the parties, in particular written statements, have not been tested in
examination or cross‑examination and, thus, might constitute a
potentially misleading basis for any conclusion to be reached in the present
case.
53. As noted earlier and having
regard to the independent reports concerning the evacuation and destruction of
villages in south-east Turkey at the relevant time (see paragraphs 23-34
above), the applicants’ allegations that they had been forcibly evicted from
their village and that their houses and possessions had been burned down by
State security forces cannot be discarded as being prima facie
untenable. However, for the Court, the required evidentiary
standard of proof for the purposes of the Convention is that of “beyond
reasonable doubt”, and such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences, or of similar unrebutted
presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January
1978, Series A no. 25, p. 65, § 161).
54. In this context, the Court
notes that the applicants did not submit any eye-witness statement in relation
to the burning down of their houses and possessions by the security forces. Nor
did they give any particulars as to the identity of the soldiers involved in
the alleged events. Furthermore, it does not appear that the applicants
intervened in the proceedings which were commenced by the Ovacık Public
Prosecutor’s office or that they pursued their case subsequent to lodging a
complaint with the prosecuting authorities. The applicants have offered no
explanation for their failure to follow up the investigation conducted by the
authorities. Moreover, the Court also finds no evidence in the file which would
rebut the Government’s submissions and the testimonies of the applicants’
fellow villagers.
55. In the
light of the above and having regard to the applicants’ failure to corroborate
their allegations, the Court does not find it established to the required
standard of proof that the applicants’ houses were burned or that they were
forcibly evicted from their village by the State security forces.
56. Against
this background, the Court concludes that there has been no violation of
Articles 3 and 8 of the Convention or Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF
ARTICLE 5 § 1 OF THE CONVENTION
57. The applicants alleged that the
circumstances surrounding the destruction of their houses and their forced
eviction from Tepsili village had also amounted to a violation of their right
to liberty and security of person enshrined in Article 5 § 1 of the Convention,
which reads:
“Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law.”
58. The Government did not address
this aspect of the case.
59. The Court recalls that the
primary concern of Article 5 § 1 is the protection from arbitrary deprivation
of liberty by the State.
60. In the present case, the
applicants were never arrested or detained, or otherwise deprived of their
liberty. The applicants’ insecure personal circumstances arising from the alleged
loss of their home and possessions do not fall within the notion of security of
person as envisaged in Article 5 § 1 (see Çaçan, cited
above, § 70; and Cyprus v. Turkey [GC], no. 25781/94, § 228, ECHR
2001‑IV).
61. In the light of the foregoing,
the Court concludes that there has been no violation of Article 5 § 1 of the
Convention.
IV. ALLEGED VIOLATION OF
ARTICLES 6 AND 13 OF THE CONVENTION
62. The applicants complained that
they had been denied an effective remedy by which to challenge the destruction
of their houses and their forced eviction by the security forces, including
access to a court to assert his civil rights. They relied on Article 6 § 1 of
the Convention, which provides, in so far as relevant:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
and Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as
set forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
A. Article 6 § 1 of the Convention
63. The applicants submitted that
their right of access to a court to assert their civil rights had been denied
on account of the failure of the authorities to conduct an effective
investigation into their allegations. In their opinion, without such an
investigation, they would have had no chance of obtaining compensation in civil
proceedings.
64. The Government maintained that
the applicants had failed to pursue the remedies available in domestic law. Had
the applicants filed a civil action, they would have enjoyed effective access
to a court.
65. The Court notes that the
applicants did not bring an action before the civil courts for the reasons
given in the admissibility decision of 2 September 2003. It is therefore impossible to determine whether the national courts would have been able to
adjudicate on the applicants’ claims had they initiated proceedings. In the
Court’s view, the applicants’ complaints mainly pertain to the alleged lack of
an effective investigation into the deliberate destruction of their family home
and possessions and their forced eviction from their village by the security
forces. It will therefore examine this complaint from the standpoint of Article
13, which imposes a more general obligation on States to provide an effective
remedy in respect of alleged violations of the Convention (see Selçuk and
Asker, cited above, § 92).
66. The Court therefore finds it
unnecessary to determine whether there has been a violation of Article 6 § 1 of
the Convention.
B. Article 13 of the Convention
67. The applicants complained under
Article 13 of the Convention that they had no effective remedy available in
respect of their Convention grievances.
68. The Government contended that
there had been no shortcomings in the investigation and that the authorities
had conducted an effective inquiry into the applicants’ allegations.
69. The Court reiterates that
Article 13 of the Convention guarantees the availability at national level of a
remedy to enforce the substance of the Convention rights and freedoms in
whatever form they might happen to be secured in the domestic legal order. The
effect of Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of an “arguable complaint” under the Convention and
to grant appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their Convention obligations
under this provision. The scope of the obligation under Article 13 varies
depending on the nature of the applicant’s complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective” in practice
as well as in law, in particular its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the respondent State
(see Dulaº and Yöyler, both cited above, §§ 65 and 87
respectively).
70. The Court recalls that on the
basis of the evidence collected in the present case, it has not found it proved
to the required standard of proof that the applicants’ houses were destroyed or
that they were forcibly displaced by the State security forces as alleged (see
paragraph 55 above). This does not however mean, for the purposes of Article
13, that their complaints fall outside the scope of its protection (see D.P. and J.C. v. the United Kingdom, no.
38719/97, 10 October 2002, § 136). These complaints were not declared
inadmissible as manifestly ill-founded and therefore necessitated an
examination on the merits. Furthermore, in its admissibility decision of 2 September 2003, the Court had already concluded that the applicants had been
absolved from pursuing any further remedy in domestic law given the lack of a
thorough and effective investigation into their complaints.
71. That said, the Court reiterates
that, notwithstanding the terms of Article 13 read literally, the existence of
an actual breach of another provision is not a prerequisite for the application
of the Article (Boyle and Rice v. the United Kingdom, judgment of 27 April
1988, Series A no. 131, § 52). Accordingly, having regard to its findings
in the admissibility decision and to its conclusion that the applicant’s allegations could not be discarded as being prima
facie untenable (see paragraph 60 above), the Court considers that the applicants’ complaints raised arguable claims of violations of
the Convention for the purposes of Article 13 of the Convention (see, mutatis mutandis, insofar as the applicability
of Article 6 of the Convention was at
stake, Mennitto v. Italy [GC], no. 33804/96, § 27, ECHR 2000‑X).
72. Turning to the particular
circumstances of the case, the Court notes that following
the Ovacık Public Prosecutor’s decision of non-jurisdiction, the
administrative authorities of the Ovacık District Council commenced an
investigation into the applicants’ allegations. However, the investigation in
question was limited to asking the Gendarmerie Headquarters to provide
information about the applicants’ allegations (see paragraph 14 above). It does
not seem that any attempt was made to interview members of the security forces
during the course of investigation, despite the fact that the applicants had
clearly accused gendarmes of burning their houses and possessions. Nor does it
appear that the authorities considered visiting the scene of the alleged events
in order to verify the applicants’ allegations. Rather, they were content to
rely on the information given by the security forces. It is noteworthy in this
connection that the Court has consistently found a general reluctance on the
part of the authorities to consider the possibility that members of the
security forces could have perpetrated such acts (see the above-mentioned
judgments of Selçuk and Asker, § 68, İpek, § 206; Yöyler,
§ 92). Indeed, the response given by the Ovacık District Governor in the
instant case confirms the Court’s previous findings (see paragraph 17 above).
Finally, subsequent to the gendarmerie authorities’ denial of the applicants’
allegations no further investigation was carried out by the authorities of the
Ovacık District Council.
73. In any event, the Court has previously
expressed serious doubts as to the ability of the
administrative councils in south-east Turkey to carry out an independent
investigation given that they were composed of civil servants, who were
hierarchically dependent on the governor, and an executive officer who was
linked to the security forces under investigation (see, among many others, Güleç
v. Turkey, no. 21593/93, § 80, Reports 1998-IV; Yöyler and İpek,
both cited above, §§ 93 and 207 respectively). The serious defects identified
in the investigation do not permit the Court to reach a different conclusion in
the present case.
74. In these circumstances, it
cannot be said that the authorities have carried out a thorough and effective
investigation into the applicants’ allegations of the destruction of property
in Tepsili.
75. Accordingly, there has been a
violation of Article 13 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 6, 8 AND 13 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL NO. 1
76. The applicants maintained that,
because of their Kurdish origin, they had been subjected to discrimination in
breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and
13 of the Convention and Article 1 of Protocol No. 1. Article 14 provides as
follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status.”
77. The applicants argued that the
destruction of their houses and possessions was the result of an official
policy, which constituted discrimination due to their Kurdish origin.
78. The Government rejected the
applicants’ allegations.
79. The Court has examined the
applicants’ allegation in the light of the evidence submitted to it, but
considers it unsubstantiated. There has therefore been no violation of Article
14 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
80. The applicants alleged that the
interference or restrictions complained of have been imposed for purposes
incompatible with the Convention. They invoked Article 18 of the Convention,
which reads:
“The restrictions permitted under [the]
Convention to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
81. The Court points out that it
has already examined this allegation in the light of the evidence submitted to
it, and found that it was unsubstantiated. Accordingly, no violation of this
provision has been established.
VII. APPLICATION OF ARTICLE 41
OF THE CONVENTION
82. Article
41 of the Convention provides:
“If the
Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
83. The applicants claimed a
total amount of 916,560,000,000 Turkish liras (TRL) in respect of the pecuniary
damage suffered by them as a result of the destruction of their houses and
their inability to regain their economic activities since October 1994.
84. The Government submitted that
no just satisfaction should be paid to the applicants since there had been no
violation of the Convention. They contended, in the alternative, that should
the Court find a violation of any of the provisions of the Convention, the
amounts claimed by the applicants were speculative and did not reflect the
economic realities of the region.
85. The Court reiterates that there
must be a causal connection between the damage claimed by the applicants and
the violation of the Convention, and that this may, in an appropriate case,
include compensation in respect of loss of earnings (see amongst others, the Barberà,
Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994,
Series A no. 285-C, pp. 57‑58, §§ 16-20). However, the Court recalls
that in the instant case it was not established to the
required standard of proof that the applicants’ houses were burned or that they
were forcibly evicted from their village by the State security forces (see
paragraph 55 above). Accordingly, there is no causal link between the matter
held to constitute a violation of the Convention – the absence of an effective
investigation – and the pecuniary damage claimed by the applicants. It therefore
dismisses the applicants’ claim under this head.
B. Non-pecuniary damage
86. The applicants each claimed
an amount of 20,000 euros (EUR) in respect of non-pecuniary damage. They
referred in this regard to the pain and poverty they had suffered following
their forced eviction from their village and the destruction of their houses
and possessions in Tepsili.
87. The Government maintained
that this amount was excessive and unjustified.
88. The Court has found that the
national authorities failed to carry out an effective and thorough
investigation into the applicants’ complaints in breach of Article 13 of the
Convention (see paragraphs 67-75 above). Accordingly, an award should be made
in respect of non-pecuniary damage. Taking into account the seriousness of the
allegations and deciding on an equitable basis the Court awards EUR 4,000 to each
of the applicants (a total sum of EUR 20,000), to be converted into Turkish
liras at the rate applicable at the date of payment.
C. Costs and expenses
89. The applicants claimed a
total of EUR 31,850 for fees and costs in the preparation and presentation of their
case before the Convention institutions. This sum included fees and costs
incurred by their lawyers (60 hours and 20 minutes’ legal work and
expenses such as telephone calls, postage, translation and stationary).
90. The Government maintained that
this claim was excessive and unsubstantiated. They argued that no receipt or
any other document had been produced by the applicants to prove their claim.
91. The Court would point out that
the applicants have only partly succeeded in making out their complaints under
the Convention. Yet, the present case involved complex issues of fact and law
that required detailed examination. That said, the Court reiterates that only
legal costs and expenses that have been necessarily and actually incurred can
be reimbursed under Article 41 of the Convention. Having regard to the details
of the claims submitted by the applicants, the Court awards them the sum of EUR 3,150,
exclusive of any value-added tax that may be chargeable, less 3,800 French
francs (approximately EUR 580) received by way of legal aid from the Council of
Europe.
D. Default interest
92. The Court considers it
appropriate that the default interest should be based on the marginal lending
rate of the European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s
preliminary objection;
2. Holds that there has been
no violation of Articles 3 and 8 of the Convention and Article 1 of Protocol
No. 1;
3. Holds that there has been
no violation of Article 5 § 1 of the Convention;
4. Holds that it is
unnecessary to determine whether there has been a violation of Article 6 § 1 of
the Convention;
5. Holds that there has been
a violation of Article 13 of the Convention;
6. Holds that there has been
no violation of Article 14 of the Convention, in conjunction with Articles 3, 6,
8 and 13 of the Convention and Article 1 of Protocol No. 1;
7. Holds that there has been
no violation of Article 18 of the Convention;
8. Holds
(a) that
the respondent State is to pay, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, the following amounts, to be converted into new Turkish liras at
the rate applicable at the date of settlement and to be paid into the
applicants’ bank account in Turkey:
(i) EUR
4,000 (four thousand euros) to each applicant in respect of non‑pecuniary
damage;
(ii) EUR
3,150 (three thousand one hundred and fifty euros) to the applicants jointly in
respect of costs and expenses, less EUR 580 (five hundred and eighty euros);
(iii) plus
any tax that may be chargeable on these amounts;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three percentage
points;
9. Dismisses the remainder
of the applicants’ claim for just satisfaction.
Done in
English, and notified in writing on 2 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupanèiè
Registrar President
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