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CASE OF AKDIVAR AND OTHERS v. TURKEY (Application no. 21893/93) – European Court of Human Rights

COURT (GRAND CHAMBER)

CASE OF AKDIVAR AND OTHERS v. TURKEY

(Application no. 21893/93)

JUDGMENT

STRASBOURG

16 September 1996

In the case of Akdivar and Others v. Turkey 1,

The European Court of Human Rights, sitting, pursuant to Rule 51 of Rules of Court A 2, as a Grand Chamber composed of the following judges:

Mr  R. Ryssdal, President,

Mr  R. Bernhardt,

Mr  Thór Vilhjálmsson,

Mr  F. Gölcüklü,

Mr  R. Macdonald,

Mr  A. Spielmann,

Mr  N. Valticos,

Mr  S.K. Martens,

Mrs  E. Palm,

Mr  I. Foighel,

Mr  A.N. Loizou,

Mr  M.A. Lopes Rocha,

Mr  L. Wildhaber,

Mr  G. Mifsud Bonnici,

Mr  J. Makarczyk,

Mr  D. Gotchev,

Mr  B. Repik,

Mr  K. Jungwiert,

Mr  P. Kuris,

Mr  U. Lohmus,

Mr  E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 27 April, 21 May and 30 August 1996,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.   The case was referred to the Court by the Government of Turkey (“the Government”) on 4 December 1995 and by the European Commission of Human Rights (“the Commission”) on 11 December 1995, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).  It originated in an application (no. 21893/93) against the Turkish Republic lodged with the Commission under Article 25 (art. 25) on 3 May 1993 by eight Turkish nationals, Mr Abdurrahman Akdivar, Mr Ahmet Akdivar, Mr Ali Akdivar, Mr Zülfükar Çiçek, Mr Ahmet Çiçek, Mr Abdurrahman Aktas, Mr Mehmet Karabulut and Mr Hüseyin Akdivar.  The Commission later held that the latter was not an applicant (see paragraphs 48-50 below).

The Government’s application referred to Article 48 (art. 48) and the Commission’s request, which concerned the eight persons mentioned above, referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).  The object of the application and of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5, 6 para. 1, 8, 13, 14, 18 and 25 para. 1 of the Convention (art. 3, art. 5, art. 6-1, art. 8, art. 13, art. 14, art. 25-1) and Article 1 of Protocol No. 1 (P1-1).

2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30).

On 26 March 1996 the President of the Chamber granted leave, pursuant to Rule 30 para. 1, to Ms Françoise Hampson, a Reader in Law at the University of Essex, to act as one of the applicants’ representatives.

3.   The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)).  On 5 December 1995, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr R. Macdonald, Mr N. Valticos, Mr S.K. Martens, Mr M.A. Lopes Rocha, Mr D. Gotchev, Mr B. Repik and Mr E. Levits (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4.   As President of the Chamber (Rule 21 para. 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in consequence, the Registrar received the applicants’ memorial on 12 March 1996 and the Government’s memorial on 15 March.  The Secretary to the Commission subsequently informed the Registrar that the Delegate would submit his observations at the hearing.

5.   On 31 January 1996 the Government requested, pursuant to Rule 48 para. 2, that the Court hold a separate hearing on preliminary objections.  On 14 and 19 February the applicants and the Delegate submitted their respective comments on the request and on 21 February the Chamber decided to decline the request.

6.   On 20 March 1996 the Commission produced various documents, as requested by the Registrar on the President’s instructions.

7.   On 28 March 1996 the President of the Chamber granted leave, pursuant to Rule 37 para. 2, to Amnesty International to submit written comments on specified aspects of the case.  These were received on 4 April 1996.

8.   On 28 March 1996 the Chamber decided unanimously to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51).

9.   The Grand Chamber to be constituted included ex officio Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the Court, and the other members and substitute judges (namely, Mr I. Foighel, Mr P. Kuris, Mr C. Russo and Mr B. Walsh) of the Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and (b)).  On 30 March 1996, in the presence of the Registrar, the President drew by lot the names of the seven additional judges called on to complete the Grand Chamber, namely Mr A. Spielmann, Mrs E. Palm, Mr F. Bigi, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr K. Jungwiert and Mr U. Lohmus.

Prior to the hearing, Mr Bigi, who had died, and Mr Walsh and Mr Russo, who were unable to participate in the case, were replaced by Mr J. Makarczyk, Mr A.N. Loizou and Mr Thór Vilhjálmsson respectively (Rule 24 para. 1 in conjunction with Rule 51 para. 6).

10.   On 4 April 1996 the President of the Court, Mr Ryssdal, refused the applicants’ request, pursuant to Rule 27 para. 3, for use of interpretation facilities during the oral hearing on the grounds of its late submission.

11.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 April 1996.  The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr B. Çaglar, Ministry of Foreign Affairs, Agent,

Mr H. Golsong,

Ms D. Akçay,

Mr T. Özkarol,

Mr A. Kurudal,

Mr F. Erdogan,

Mr O. Sever,

Ms M. Gülsen, Counsel;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicants

Mr K. Boyle, Barrister-at-Law,

Ms F. Hampson, University of Essex, Counsel,

Mr K. Yildiz,

Mr T. Fisher,

Ms A. Reidy, Advisers.

The Court heard addresses by Mr Danelius, Mr Boyle, Mr Çaglar, Mr Özkarol, Ms Akçay and Mr Golsong and also replies to its questions.

AS TO THE FACTS

12.   The facts are based on the Commission’s findings of fact as set out and developed in its report of 26 October 1995.

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

A. The situation in the South-East of Turkey

13.   Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan).  This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.  It appears from information submitted by the applicants and by the amicus curiae that a large number of villages, estimated at more than 1,000, have been destroyed and evacuated during this conflict (see paragraph 7 above).

14.   Since 1987, ten of the eleven provinces of south-eastern Turkey have been subjected to emergency rule which was in force at the time of the facts complained of.

B. Destruction of the applicants’ houses

15.   The applicants (see paragraph 1 above), Turkish nationals, were residents in the village of Kelekçi in the Dicle district of the province of Diyarbakir.  The village of Kelekçi and the surrounding areas have been the centre of intense PKK terrorist activity.  It is undisputed that the PKK launched serious attacks on Kelekçi on 17 or 18 July 1992, and the neighbouring village of Bogazköy on 1 November 1992.  As a result of the first attack, three Kelekçi villagers were killed and three others wounded.  The second attack on 1 November 1992 was directed at the Bogazköy gendarme station, which was destroyed, with one gendarme being killed and eight others injured.  Thereafter security forces were reinforced in the area and extensive searches were carried out for terrorists.  The applicants alleged that on 10 November 1992 State security forces launched an attack on the village of Kelekçi, burnt nine houses, including their homes, and forced the immediate evacuation of the entire village.

16.   The Government categorically denied these allegations, contending that the houses had been set on fire by the PKK.  Initially they stated that the village had merely been searched and that no damage had been caused.  Subsequently, it was maintained that no soldiers had entered Kelekçi on 10 November 1992, and, if they had been in the vicinity, they had stopped on the outskirts of the village to take a rest.

17.   On 6 April 1993 houses in Kelekçi were set on fire and the village was almost completely destroyed.  It is disputed, however, whether this destruction was caused by terrorists or by security forces.

18.   The Commission established that nine houses, including those of the applicants, were destroyed or seriously damaged by fire not long after the attack on the Bogazköy gendarme station on 1 November 1992. Although noting that there was some uncertainty as to the exact date when the nine houses were burnt, it accepted the applicants’ claims that this occurred on 10 November 1992.

C. Commission’s findings concerning investigations at the domestic level

19.   The Commission found that no proper investigation was carried out at the domestic level regarding the destruction of the nine houses at Kelekçi on 10 November 1992 either immediately after the event or thereafter.  Apparently, a gendarmerie report of 29 November 1993 dealt with events at Kelekçi.  However, the Commission concluded that this report and other “incident reports” which had been submitted to the Chief Public Prosecutor at the Diyarbakir State Security Court, in so far as they concerned the destruction of the nine houses, did not result in any investigation of the facts and involved no attempt to establish responsibility for the destruction.

20.   It was also established by the Commission that, although the applicants had lost their homes, no one gave proper advice to them or, apparently, to the other displaced Kelekçi villagers, on how to obtain compensation for the loss of their homes or other forms of assistance. Petitions were made by the mayor of the village and statements were given to several State officials.  However, no authority took up the applicants’ problems or referred them to the competent body.

21.   There was also evidence before the Commission that, after the case had been brought to it, certain of the applicants, or persons who were believed to be applicants such as Hüseyin Akdivar and Ahmet Çiçek (see paragraphs 48-50 below), had been questioned by the State authorities about their applications to the Commission.  The Commission had been provided with a filmed interview with these two persons, during which they were asked about the case in Strasbourg.

22.   As regards the events on 10 November 1992 (see paragraph 15 above), the Commission noted that the investigation reports and the recorded statements by villagers which had been submitted to it by the respondent Government were dated September 1994, i.e. almost two years after the destruction of the nine houses.  In these statements they placed the blame on the PKK for setting fire to the houses.  At that time, a number of villagers had been heard by the authorities about events at Kelekçi.  It was observed that this inquiry had taken place at a time when the village had been further damaged on 6 April 1993, and after the Commission had communicated the applicants’ complaints to the Government for observations and decided to hold an oral hearing in the case.

It was further noted that the investigation reports of September 1994 were based on an exploratory mission undertaken by helicopter on 21 September 1994.  During this mission, the investigating team did not land at Kelekçi but only observed the village during low-level flights.  The report stated that all the houses at Kelekçi had collapsed and that there were no inhabitants in the village.

23.   As to the events of 6 April 1993, the Commission found that a team of gendarmes had heard various villagers in April 1993.  However, in their recorded statements no reference was made by the villagers to the incident of 10 November 1992.  The statements were examined by the Commission in order to determine whether they should affect the Commission’s findings on questions of fact in respect of the incident complained of.  In its report of 26 October 1995 it concluded as follows:

“197. In this respect, it is striking that the various statements by the villagers are drafted in a stereotyped form and have on the whole the same contents (see paragraphs 54, 56, 57, 59, 61, 65, 66, 68, 71, 73 and 75).  Most of them describe the events of 6 April 1993 in an almost identical manner.  In the recorded statements the villagers refer to the fact that the terrorists had made a previous attack on the village during which three persons had been killed and three others injured, this general formula being used even in the statements of the applicants Ahmet Çiçek and Abdurrahman Aktas whose close relatives, including the latter’s father, had been killed on that occasion.  The statements also contain a declaration about the villagers’ respect for the State and their willingness to help the State.  All in all, the recorded statements give the impression of having been drafted in a uniform manner by the gendarmes rather than reflecting spontaneous declarations by the villagers.  This may also explain why some of these statements are in complete contradiction to what the same persons have stated on other occasions (see Ahmet Çiçek’s statements referred to in paragraphs 61 and 89-90 above, Abdurrahman Aktas’s statements referred to in paragraphs 54 and 98 above, and Abdullah Karabulut’s statements referred to in paragraphs 66, 67 and 111 above).  Thus it seems highly doubtful whether the recorded statements to the gendarmes can be said to reflect the information that the villagers intended to convey in regard to the events at issue.”

24.   The Commission concluded that it attached no particular weight to the statements of the villagers in April 1993.  It further noted the inadequacy of any real investigations at the domestic level which could be of assistance in elucidating the events on 10 November 1992.  It concluded that the absence of any such investigations was in itself a disturbing element in regard to a serious matter such as the destruction of the homes of a considerable number of persons.

D. Commission’s evaluation of the evidence

25.   In the absence of any relevant investigations at the domestic level, the Commission based its finding on the evidence which had been given orally by various persons or submitted in writing in the course of the proceedings before it.

26.   The Commission concluded that there was no evidence of any conspiracy between the villagers to accuse the State of the burning of the houses in order to obtain compensation or for any other purpose.

It also noted that, while there was evidence that the security forces were in the village, none of the witnesses stated that any stranger had been seen at Kelekçi on 10 November 1992.  It was unlikely that terrorists would have set fire to nine houses in the village without anyone having noted their presence.  Nor was there any other evidence showing that terrorists had been at Kelekçi on that day.

27.   Following an assessment of the evidence, the Commission found it convincingly shown that security forces – presumably under the strain of intense terrorist activity in the area – were responsible for the burning of the nine Kelekçi houses on 10 November 1992.  However, it had not been shown that the applicants were forcibly expelled from Kelekçi, but the loss of their homes caused them to abandon the village and move elsewhere.

II.   RELEVANT DOMESTIC LAW AND PRACTICE

28.   The Government have submitted that the following domestic law is relevant to the case.

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.”

29.   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.

30.   The principle of administrative liability is reflected in the additional Article 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.”

31.   The Turkish Criminal Code makes it a criminal offence

– to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),

– to oblige someone through force or threats to commit or not to commit an act (Article 188),  – to issue threats (Article 191),

– to make an unlawful search of someone’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 526 et seq.).

32.   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.

33.   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 the Procedure of Military Courts).

34.   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 (Danistay); a refusal to prosecute is subject to an automatic appeal of this kind.

35.   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.

36.   Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.

37.   Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.

38.   Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.

39.   Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983.  That includes Law no. 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.

40.   Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.

41.   Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils.  According to the Commission, these councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors, who also head the security forces.

42.   Article 8 of Decree no. 430 of 16 December 1990 provides as follows:

“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end.  This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”

43.   According to the submissions of the applicants, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas.  Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.

PROCEEDINGS BEFORE THE COMMISSION

44.   The applicants lodged their application (no. 21893/93) with the Commission on 3 May 1993.  They relied on Articles 3, 5, 6, 8, 13, 14 and 18 of the Convention (art. 3, art. 5, art. 6, art. 8, art. 13, art. 14, art. 18) and Article 1 of Protocol No. 1 (P1-1), alleging that their homes were burnt on 10 November 1992 and that they were forcibly and summarily expelled from their village by State security forces.

45.   The Commission declared the application admissible on 19 October 1994.  In its report of 26 October 1995 (Article 31) (art. 31), it expressed the opinion that there had been violations of Article 8 and Article 1 of Protocol No. 1 (art. 8, P1-1) (eighteen votes to one), that there had been a violation of Article 3 (art. 3) (fourteen votes to five), that there had been no violation of Article 5 para. 1 (art. 5-1) (unanimously), that there had been violations of Articles 6 para. 1 and 13 (art. 6-1, art. 13) (twelve votes to seven), that there had been no violation of Articles 14 and 18 (art. 14, art. 18) (unanimously) and that Turkey had failed to comply with its obligations under Article 25 para. 1 (art. 25-1) (twelve votes to seven).

The full text of the Commission’s opinion and of the eight dissenting opinions contained in the report is reproduced as an annex to this judgment 3.

FINAL SUBMISSIONS TO THE COURT

46.   The Government requested the Court to accept the preliminary objection concerning the exhaustion of domestic remedies.  In the alternative they submitted that there was no violation of the Convention.

47.   The applicants maintained that the Court should reject the Government’s preliminary objections and address the merits of their complaints.  In their submission the Court should hold that there were violations of Articles 3, 6, 8, 13, 14, 18, and 25 para. 1 of the Convention (art. 3, art. 6, art. 8, art. 13, art. 14, art. 18, art. 25-1) and Article 1 of Protocol No. 1 (P1-1).

AS TO THE LAW

I.   STATUS OF HÜSEYIN AKDIVAR AND AHMET ÇIÇEK

48.   In their memorial to the Court the Government sought a declaration that the so-called applicants Hüseyin Akdivar and Ahmet Çiçek (born in 1967) do not have the status of victims within the meaning of Article 25 para. 1 of the Convention (art. 25-1).

49.   The Court recalls that the Commission in its report of 26 October 1995 found that Hüseyin Akdivar and Ahmet Çiçek could not be considered to be applicants.  The former had denied having signed the power of attorney submitted to the Commission and the latter had been confused with a cousin of the same name, born in 1968, who was regarded by the Commission as the authentic applicant.  These findings concerning their applicant status have not been disputed in the proceedings before the Court.

50.   Having regard to the above, the Court also finds that they cannot be considered as applicants.

II.   THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Alleged Abuse of process

51.   Prior to the filing of their memorial, the Government requested that a separate hearing be held concerning the preliminary objection under Article 26 (art. 26) (see paragraph 5 above), and again in their oral pleadings before the Court, they submitted that the present application amounted to an abuse of the right of petition.  They claimed that the failure of the applicants to avail themselves of remedies available in South-East Turkey (see paragraphs 55-59 below) was part of the general policy of the PKK to denigrate Turkey and its judicial institutions and to promote the idea of the legitimacy of their terrorist activities.  As part of this strategy it was necessary to prove that the Turkish judicial system was ineffective in general and unable to cope with such complaints and to distance the population in South-East Turkey from the institutions of the Republic and, in particular, the courts.  The applicants’ failure to exhaust remedies in this case had thus a political objective.

52.   The applicants denied that the application had been made for the purposes of political propaganda against the Government of Turkey. They had brought their case to obtain redress for the violations of the Convention which they had suffered and with a concern to secure the return of the rule of law to that part of Turkey.

53.  The Commission in its admissibility decision of 19 October 1994 considered that the Government’s argument could only be accepted if it were clear that the application was based on untrue facts which, at that stage of the proceedings, was not the case.

54.   The Court shares the Commission’s opinion.  It recalls that the Commission in its findings of fact has substantially upheld the applicants’ allegations concerning the destruction of their property (see paragraphs 78-82 below).  Under these circumstances, and a fortiori, the Government’s plea must be rejected.

B. Exhaustion of domestic remedies

55.   Article 26 of the Convention (art. 26) provides as follows:

“The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

1. The arguments of those appearing before the Court

(a) The Government

56.   The Government submitted that the application should be rejected for failure to exhaust domestic remedies as required by Article 26 (art. 26).  They stressed in this context that not only did the applicants fail to exhaust relevant domestic remedies but they did not even make the slightest attempt to do so.  No allegation or claim for compensation was ever submitted to the Turkish courts.  The judicial authorities were thus deprived of the opportunity of implementing the procedural and substantive provisions regarding compensation which are available under Turkish law.

57.   The Government further contended that the applicants could have addressed themselves to the administrative courts and sought compensation for the alleged damage pursuant to Article 125 of the Turkish Constitution (see paragraphs 28-30 above) which, they pointed out, places no limits on the right to challenge acts or decisions of the administration, even in a state of emergency, a state of siege or war.  With reference to numerous decided cases, they demonstrated that the administrative courts had granted compensation in many cases involving death, injuries or damage to property arising out of the emergency situation on the basis of the theory of social risk and that in these proceedings it was unnecessary to prove fault (see paragraph 29 above).  Moreover, the burden of proof had been simplified by the courts to the point where it was enough to show the existence of a causal link between what was done and the harm sustained.  Furthermore the courts, which had acquired profound experience of the struggle against terrorism, were prepared to award compensation not only in respect of acts of the administration but also in respect of the acts of the PKK.

They also emphasised, again with reference to decided cases, that the applicants could have sought damages under the ordinary civil law.  The Code of Obligations provided for a right to damages in cases where servants of the administration committed unlawful acts.  In particular the case-law established that the civil courts are not bound by acquittals of administrative officials obtained before the criminal courts.

58.  Referring to a number of leading judgments of international tribunals in this area, the Government maintained that the exhaustion requirement applied unless the applicant could show that the remedy provided was manifestly ineffective or that there was no remedy at all (see, inter alia, the Interhandel case, International Court of Justice Reports (1959), the Finnish Ships Arbitration (1934), Reports of International Arbitral Awards, United Nations, vol. 3; the Ambatielos Claim, ibid., vol. 12).  The applicants had failed to provide any evidence that there were insurmountable obstacles to taking proceedings before the Turkish courts.  Although the numerous judgments submitted by the Government did not cover the precise complaints made by the applicants, they demonstrated beyond doubt the reality and effectiveness of proceedings before the Turkish courts.  The lack of such a judgment could be explained by the fact that the administration, through the Aid and Social Solidarity Fund, provided considerable financial assistance, material aid and housing to persons who had lost their possessions or homes owing to terrorist activity or to fighting by the security forces.

59.   Finally the Government asserted that the applicants had not substantiated in any way their allegations concerning a fear of reprisals for having recourse to the Turkish courts.  They and a large number of applicants in other cases pending before the Commission had been able to bring their cases to Strasbourg without harassment.  If they had been able to consult the lawyers of the Human Rights Association with a view to bringing proceedings in Strasbourg, it must also have been open to them to enforce their rights before the administrative courts.

(b) The applicants

60.  The applicants maintained with reference to reports from human rights organisations that the destruction of their homes was part of a State-inspired policy which had affected over two million people and almost three thousand settlements.  Villages were sometimes burnt and evacuated because they were seen as giving shelter to the PKK.  That policy, in their submission, was tolerated, condoned and possibly ordered by the highest authorities in the State and aimed at massive population displacement in the emergency region of South-East Turkey. There was thus an administrative practice which rendered any remedies illusory, inadequate and ineffective.  Since there were no signs that the Government were willing to take steps to put an end to the practice, victims could have no effective remedy.

In the alternative, the applicants contended that the remedy before the administrative courts in respect of their allegations was ineffective.  In the first place the Government had not been able to produce a single case in which the administrative courts had considered a claim such as the applicants’, namely that the gendarmes had burned down their homes.  In the second place, as a matter of Turkish law, the administrative court is not competent to deal with cases such as that of the applicants which concerns acts of arson and intimidation.  Such serious criminal offences fell clearly outside the duties of public officials and were thus beyond the competence of the administrative courts.  The question of accountability and compensation in respect of such matters fell within the province of the civil and criminal courts.

61.   They further submitted that in practice there was no civil-law remedy open to them.  Under Article 8 of Decree no. 430 the Regional Governor was immune from suit in so far as it is claimed that he personally ordered the evacuation of the applicants’ village. Furthermore, there was no prospect of success in a civil suit for damages against the State unless there had been a finding by a criminal court that an offence had occurred even if there had been no conviction in respect of it.  Such a criminal verdict presupposes that there had been an investigation followed by a prosecution.  However, no investigation had taken place in their case.

(c) The Commission

62.  The Commission found that the applicants did not have at their disposal adequate remedies to deal effectively with their complaints. The Delegate of the Commission pointed out that, if the remedies were effective, it should have been possible to show examples of court judgments from which it appeared that compensation had been granted or responsible officers had been punished, or at least prosecuted, for deliberate destruction of houses in villages.  However, the respondent Government had not been able to furnish such a judgment.  Moreover, it was at least doubtful whether an administrative court judgment which would grant compensation but leave open and undecided the question of the responsibility for the destruction could be considered to provide adequate and sufficient redress and whether such a remedy was effective in relation to the specific complaint.

63.  The Delegate submitted that it might, in practice, be impossible for villagers such as the applicants to institute and pursue such proceedings.  In the first place, there would be considerable practical difficulties.  For example, it was unlikely that a villager whose property had been destroyed would be able to pay for the services of a lawyer himself.  Secondly, the success of proceedings based on accusations of this kind depended on an impartial investigation being made by the authorities.  In the prevailing circumstances it was highly doubtful whether such an investigation would be made.  Moreover, in South-East Turkey, where the security forces had to carry out their difficult tasks under much strain and insecurity, the delegation of the Commission had detected a desire amongst the representatives of the State whom they had questioned to protect the military and a clear reluctance to accept that accusations be levelled against the security forces.

(d) Amnesty International

64.   Amnesty International (see paragraph 7 above) stated that although there had been widespread deliberate destruction of villages by members of the security forces in South-East Turkey it was not aware of any cases in which villagers have received compensation for this damage.  Moreover, in some cases those who have attempted to obtain such compensation have been victims of extrajudicial execution, “disappearance” or torture.  Those responsible for such intimidation are rarely brought to justice, and usually receive light sentences if they are.

2. The Court’s assessment

(a) General principles

65.   The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system.  Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.  The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) – with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law.  In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).

66.   Under Article 26 (art. 26) normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.  The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, para. 27, and the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, para. 45).

Article 26 (art. 26) also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).

67.  However, there is, as indicated above, no obligation to have recourse to remedies which are inadequate or ineffective.  In addition, according to the “generally recognised rules of international law” there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, pp. 18-19, paras. 36-40).  The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 159, and the report of the Commission in the same case, Series B no. 23-I, pp. 394-97).

68.  In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof.  It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success.  However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia, the Commission’s decision on the admissibility of application no. 788/60, Austria v. Italy, 11 January 1961, Yearbook, vol. 4, pp. 166-168; application no. 5577-5583/72, Donnelly and Others v. the United Kingdom (first decision), 5 April 1973, Yearbook, vol. 16, p. 264; also the judgment of 26 June 1987 of the Inter-American Court of Human Rights in the Velásquez Rodríguez case, Preliminary Objections, Series C no. 1, para. 88, and that Court’s Advisory Opinion of 10 August 1990 on “Exceptions to the Exhaustion of Domestic Remedies” (Article 46 (1), 46 (2) (a) and 46 (2) (b) of the American Convention on Human Rights), Series A no. 11, p. 32, para. 41).  One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance.  In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of.

69.  The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up.  Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism (see the above-mentioned Cardot judgment, p. 18, para. 34).  It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see the above-mentioned Van Oosterwijck judgment, p. 18, para. 35).  This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.

(b) Application of Article 26 (art. 26) to the facts of the case

70.   As regards the application of Article 26 (art. 26) to the facts of the present case, the Court notes at the outset that the situation existing in South-East Turkey at the time of the applicants’ complaints was – and continues to be – characterised by significant civil strife due to the campaign of terrorist violence waged by the PKK and the counter-insurgency measures taken by the Government in response to it. In such a situation it must be recognised that there may be obstacles to the proper functioning of the system of the administration of justice.  In particular, the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative inquiries on which such remedies depend may be prevented from taking place.

i. Remedy before the administrative courts

71.  The Court observes that the large number of court decisions submitted by the Government demonstrate the existence of an innovative remedy in damages before the administrative courts which is not dependent on proof of fault (see paragraphs 28-30 above).  Undoubtedly these decisions illustrate the real possibility of obtaining compensation before these courts in respect of injuries or damage to property arising out of the disturbances or acts of terrorism.

The applicants, on the other hand, have suggested that this remedy is not available in respect of the criminal acts of members of the security forces.  However, they have not tested this assumption by introducing proceedings before the administrative courts.

In the Court’s view, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see the Van Oosterwijck judgment cited above in paragraph 67, p. 18, para. 37).  Nevertheless, like the Commission, the Court considers it significant that the Government, despite the extent of the problem of village destruction (see paragraph 13 above), have not been able to point to examples of compensation being awarded in respect of allegations that property has been purposely destroyed by members of the security forces or to prosecutions having been brought against them in respect of such allegations.  In this connection the Court notes the evidence referred to by the Delegate of the Commission as regards the general reluctance of the authorities to admit that this type of illicit behaviour by members of the security forces had occurred (see paragraph 63 above).  It further notes the lack of any impartial investigation, any offer to cooperate with a view to obtaining evidence or any ex gratia payments made by the authorities to the applicants.

72.   Moreover, the Court does not consider that a remedy before the administrative courts can be regarded as adequate and sufficient in respect of the applicants’ complaints, since it is not satisfied that a determination can be made in the course of such proceedings concerning the claim that their property was destroyed by members of the gendarmerie.

ii. Remedy before the civil courts

73.   As regards the civil remedy invoked by the respondent Government, the Court attaches particular significance to the absence of any meaningful investigation by the authorities into the applicants’ allegations and of any official expression of concern or assistance notwithstanding the fact that statements by the applicants had been given to various State officials (see paragraphs 19-20 above).  It appears to have taken two years before statements were taken from the applicants by the authorities about the events complained of, probably in response to the communication of the complaint by the Commission to the Government (see paragraph 22 above).

In assessing this remedy the Court must take account of the fact that the events complained of took place in an area of Turkey subject to martial law and characterised by severe civil strife.  It must also bear in mind the insecurity and vulnerability of the applicants’ position following the destruction of their homes and the fact that they must have become dependent on the authorities in respect of their basic needs.  Against such a background the prospects of success of civil proceedings based on allegations against the security forces must be considered to be negligible in the absence of any official inquiry into their allegations, even assuming that they would have been able to secure the services of lawyers willing to press their claims before the courts.  In this context, the Court finds particularly striking the Commission’s observation that the statements made by villagers following the events of 6 April 1993 gave the impression of having been prepared by the gendarmes (see paragraph 23 above).

74.   Nor can the Court exclude from its considerations the risk of reprisals against the applicants or their lawyers if they had sought to introduce legal proceedings alleging that the security forces were responsible for burning down their houses as part of a deliberate State policy of village clearance.

75.  Accordingly, as regards the possibility of pursuing civil remedies, the Court considers that, in the absence of convincing explanations from the Government in rebuttal, the applicants have demonstrated the existence of special circumstances which dispensed them at the time of the events complained of from the obligation to exhaust this remedy.

iii. Conclusion

76.   The Court therefore concludes, in light of the above, that the application cannot be rejected for failure to exhaust domestic remedies.

77.  The Court would emphasise that its ruling is confined to the particular circumstances of the present case.  It is not to be interpreted as a general statement that remedies are ineffective in this area of Turkey or that applicants are absolved from the obligation under Article 26 (art. 26) to have normal recourse to the system of remedies which are available and functioning.  It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.

III.   THE MERITS OF THE APPLICANTS’ COMPLAINTS

A. The Court’s assessment of the facts

78.   The Court recalls its constant case-law that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31).  It is only in exceptional circumstances that the Court will use its powers in this area.  It is not, however, bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, and the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 50, para. 168).

79.  The applicants pointed out that during the hearing on the merits of the case before the Commission the Government had failed to challenge the applicants’ testimony given in the course of earlier witness hearings before the Commission.  They ought thus to be estopped from doing so.

80.  The Court notes from the Commission’s report that the facts of the case were disputed by both sides and that the Government did not accept the applicants’ version of events (see report of 26 October 1995, p. 26, paras. 37-39).  Against this background the submission that the Government is estopped must fail.

81.   On the other hand, the Court considers that it should accept the facts as established by the Commission.  It recalls that these findings were made pursuant to the hearing of witnesses in Turkey on two separate occasions by a delegation of the Commission in the presence of the representatives from both sides who were able to cross-examine the witnesses and to a hearing on the merits in Strasbourg before the Commission.

It thus finds it established that security forces were responsible for the burning of the applicants’ houses on 10 November 1992 and that the loss of their homes caused them to abandon the village and move elsewhere.  However, it has not been established that the applicants were forcibly expelled from Kelekçi by the security forces.

82.   It is against this background that the Court must examine the applicants’ complaints under the Convention.

B. Alleged violation of Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1)

83.  Article 8 of the Convention (art. 8) provides as follows:

“1.   Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

84.   Article 1 of Protocol No. 1 (P1-1) provides:

“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.”

85.  The applicants submitted that in the light of all the evidence they had adduced, they have convincingly established that they were victims of a governmental policy of forced eviction which constitutes a practice in violation of Article 8 (art. 8).  In addition, they maintained that the burning of their houses amounted to a very serious violation of their rights under Article 1 of Protocol No. 1 (P1-1).

86.   The Government submitted that it had not been shown that there had been any interference by the Turkish authorities with the applicants’ rights under these provisions (art. 8, P1-1).  Moreover, the Commission had found that it had not been proved that the applicants had been deliberately removed from the village.

87.  The Commission maintained that there had been a breach of both of these provisions (art. 8, P1-1).

88.   The Court is of the opinion that there can be no doubt that the deliberate burning of the applicants’ homes and their contents constitutes at the same time a serious interference with the right to respect for their family lives and homes and with the peaceful enjoyment of their possessions.  No justification for these interferences having been proffered by the respondent Government – which have confined their response to denying involvement of the security forces in the incident -, the Court must conclude that there has been a violation of both Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1).

It does not consider that the evidence established by the Commission enables it to reach any conclusion concerning the allegation of the existence of an administrative practice in breach of these provisions (art. 8, P1-1).

C. Alleged violation of Article 3 of the Convention (art. 3)

89.   The applicants requested the Court to endorse the Commission’s opinion that the burning of their homes by the security forces also amounted to inhuman and degrading treatment in breach of Article 3 of the Convention (art. 3) which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

90.   The Government maintained, inter alia, that the allegation of a violation of this provision (art. 3) was entirely unjustified and unsupported on the facts.  They pointed out that some of the applicants who gave evidence were not even present when the alleged events took place and that in the Commission’s finding neither the time, nor the circumstances, nor the means employed was specified.

91.  In view of the absence of precise evidence concerning the specific circumstances in which the destruction of the houses took place and its finding of a violation of the applicants’ rights under Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1) (see paragraph 88 above), the Court does not propose to examine further this allegation.

D. Alleged violation of Article 5 of the Convention (art. 5)

92.   Before the Commission the applicants alleged that they were compelled to abandon their homes in breach of the right to liberty and the enjoyment of security of person under Article 5 para. 1 of the Convention (art. 5-1).  However, they did not maintain this complaint in the present proceedings and the Court sees no reason to examine it of its own motion.

E. Alleged violations of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13)

93.  The applicants, with whom the Commission agreed, claimed that there was a violation of both Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13).  They further claimed that there was an administrative practice in breach of these provisions (art. 6-1, art. 13).

94.   Article 6 para. 1 (art. 6-1) provides, where relevant, that,

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”

95.   Article 13 (art. 13) states:

“Everyone whose rights and freedoms as set forth in this 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.”

96.   The Court recalls its finding that, while the Turkish Government had shown the existence of a scheme of remedies under Turkish law to deal with complaints arising out of the struggle against terrorism, the action for compensation before the administrative courts could not be considered an effective remedy in respect of the applicants’ complaints (see paragraphs 71-72 above). In addition, there existed special circumstances which dispensed the applicants from availing themselves of the civil remedy for damages (see paragraph 75 above).

97.  Since the complaints under this head reflect the same or similar elements as those issues already dealt with in the context of the objection concerning the exhaustion of domestic remedies, the Court considers that it is not necessary to examine these further complaints.

F. Alleged violations of Articles 14 and 18 of the Convention (art. 14, art. 18)

98.   The applicants further submitted that the acts of destruction of their property and eviction from their village were part of a deliberate and unjustified policy directed against them because they are Kurds, in violation of Articles 14 and 18 of the Convention (art. 14, art. 18) which state as follows:

Article 14 (art. 14)

“The enjoyment of the rights and freedoms set forth in this 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.”

Article 18 (art. 18)

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

99.   The Court recalls that these allegations were examined by the Commission which found that, in the light of the evidence submitted to it, they were unsubstantiated.  Bearing in mind the Commission’s role in the determination and verification of the facts (see paragraph 78 above), the Court accepts the Commission’s findings on this point. Accordingly, no violation of these provisions (art. 14, art. 18) has been established.

G. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1)

100.   Article 25 para. 1 of the Convention (art. 25-1) states as follows:

“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions.  Those of the High Contracting Parties who have made such a declaration undertake    not to hinder in any way the effective exercise of this right.”

101.   The Commission, whose opinion was endorsed by the applicants, noted with concern that the applicants, and persons who were thought to be applicants, had been directly asked by the authorities about their petitions to Strasbourg (see paragraph 21 above).  It considered it inappropriate for the authorities to approach applicants in this way in the absence of their legal representatives, particularly where such initiatives could be interpreted as an attempt to discourage them from pursuing their complaints, and concluded that the Turkish authorities had hindered the effective exercise of the right of individual petition under Article 25 para. 1 (art. 25-1).

The Delegate stated that, in general, in cases from South-East Turkey applicants had been contacted by the authorities who had inquired about their applications before the Commission.  These interviews had sometimes resulted in a declaration by the applicant that he or she had never lodged any application or that he or she did not wish to pursue the application.  In some cases, statements to this effect were recorded in minutes drawn up before a public prosecutor or a notary, apparently at the initiative of the authorities.

102.   The Government, while not denying the facts found by the Commission, emphasised that the authorities did not intimidate or harass the applicants merely by ascertaining whether an application had been brought or by conducting an investigation into the allegations to determine whether criminal offences had been committed.  In fact these inquiries had led to the discovery that Hüseyin Akdivar and Ahmet Çiçek, as found by the Commission, were not applicants (see paragraphs 48-50 above).

In addition, the Government pointed out that they had actively cooperated with the Commission at all stages of the proceedings and that during the witness hearings each of the witnesses was free to express his or her views.  The investigations, in their submission, had had no effect whatsoever on the exercise of the right of individual petition or on the ensuing proceedings.  It was only if an applicant were actually prevented from exercising the right – irrespective of the presence or absence of a legal representative during such inquiries – that there could be an obstruction to the right of individual petition.

103.  The Court recalls that the obligation in Article 25 para. 1 (art. 25-1) in fine not to interfere with the right of the individual effectively to present and pursue his complaint with the Commission confers upon an applicant a right of a procedural nature – which can be asserted in Convention proceedings – distinguishable from the substantive rights set out under section I of the Convention or its Protocols (see the Cruz Varas and Others judgment cited above in paragraph 78, p. 36, para. 99).

104.  It notes the Commission’s finding that applicants, or persons thought to be applicants like Hüseyin Akdivar and Ahmet Çiçek (see paragraphs 48-50 above), had been directly asked about their applications to the Commission and had been presented with statements to sign declaring that no such applications had been brought.  In the case of Hüseyin Akdivar and Ahmet Çiçek a filmed interview of this procedure had taken place (see paragraph 21 above).

105.  The Court, like the Commission, considers that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, mutatis mutandis, the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 22, paras. 61-64).

Given the vulnerable position of the applicant villagers and the reality that in South-East Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, the matters complained of amount to a form of illicit and unacceptable pressure on the applicants to withdraw their application.  Moreover, it cannot be excluded that the filming of the two persons who were subsequently declared not to be applicants could have contributed to this pressure (see paragraph 21 above).  The fact that the applicants actually pursued their application to the Commission does not prevent such behaviour on the part of the authorities from amounting to a hindrance in respect of the applicants in breach of this provision (art. 25-1).

106.  There has thus been a violation of Article 25 para. 1 (art. 25-1) in this respect.

IV.   APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

107.   Under Article 50 of the Convention (art. 50),

“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”

108.  In their memorial the applicants, who had received legal aid, claimed compensation for pecuniary damage in the form of restitutio in integrum and for moral damage.  They also sought costs and expenses amounting to 20,810 pounds sterling.

109.   The Government offered no comment during the hearing before the Court as regards these claims.

110.   The Delegate of the Commission considered that a substantial amount of compensation should be awarded.

A. Costs and expenses

111.   The Court considers that the applicants’ claim for costs and expenses is reasonable and awards it in full less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim.

B. Damage

112.  On the other hand, as regards the claim for pecuniary and non-pecuniary damage, the Court is of the opinion that the matter is not ready for decision.  The question must therefore be reserved and the future procedure fixed with due regard to the possibility of agreement being reached between the Government and the applicants.

C. Default interest

113.  Not having sufficient information about the statutory rate of interest applicable in Turkey to the currency in which the sums awarded are made out, the Court considers it appropriate to base itself on the statutory rate applicable in the United Kingdom on the date of adoption of the present judgment, namely 8% per annum.

FOR THESE REASONS, THE COURT

1.   Dismisses by twenty votes to one the preliminary objection concerning an alleged abuse of process;

2.   Dismisses by nineteen votes to two the preliminary objection concerning the exhaustion of domestic remedies;

3.  Holds by nineteen votes to two that there has been a violation of Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1);

4.   Holds by twenty votes to one that it will not examine further whether there has been a violation of Article 3 of the Convention (art. 3);

5.  Holds unanimously that it is not necessary to decide whether there has been a violation of Article 5 of the Convention (art. 5);

6.   Holds unanimously that it is not necessary to decide whether there has been a violation of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13);

7.  Holds unanimously that there has not been a violation of Articles 14 and 18 of the Convention (art. 14, art. 18);

8.  Holds by seventeen votes to four that Turkey has failed to fulfil its obligation under Article 25 para. 1 of the Convention (art. 25-1) not to hinder the effective exercise of the right of individual petition;

9.   Holds by nineteen votes to two

(a)   that the respondent State is to pay the applicants, within three months, in respect of costs and expenses, £20,810 (twenty thousand eight hundred and ten pounds sterling) less 14,095 (fourteen thousand and ninety-five) French francs to be converted into pounds sterling at the rate of exchange applicable on the date of delivery of the present judgment;

(b) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement;

10.  Holds by twenty votes to one that the question of the application of Article 50 of the Convention (art. 50) as regards the claim for pecuniary and non-pecuniary damage is not ready for decision; and consequently,

(a) reserves the said question;

(b) invites the Government and the applicants to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agreement they may reach;

(c) reserves the further procedure and delegates to the President of the Grand Chamber the power to fix the same if need be.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 September 1996.

Rolv RYSSDAL

President

Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following dissenting opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Ryssdal and Mr Foighel;

(b) partly dissenting opinion of Mr Mifsud Bonnici;

(c) dissenting opinion of Mr Gotchev;

(d) dissenting opinion of Mr Gölcüklü.

R. R.

H. P.

PARTLY DISSENTING OPINION OF JUDGES RYSSDAL AND FOIGHEL

With regret we are unable to agree with the Court’s conclusion that there was a breach of Article 25 para. 1 of the Convention (art. 25-1) in this case which we find unsupported by the facts as determined by the Commission in its report.

It is true that the evidence before the Commission established that Hüseyin Akdivar and Ahmet Çiçek (born in 1967) had been questioned by the authorities about their applications and that a filmed interview had taken place during which they were asked about the case in Strasbourg (see paragraph 21 of the judgment).  However it was subsequently established by the Commission that these persons could not be regarded as applicants.  This finding was accepted by the Court in paragraphs 48-50 of the judgment.

We do not consider that there is any evidence of an interference with the right of individual petition in respect of the applicants.  In these circumstances we are of the view that the Court did not have sufficient information at its disposal to reach a conclusion that Turkey had failed to comply with her obligations under Article 25 para. 1 (art. 25-1) in fine.

PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

This dissent is limited to the procedural point which, to my mind, is raised by the decision arrived at with regard to the claim by the applicants of violations of Article 3 of the Convention (art. 3) through the burning of their houses.  In point 4 of the operative part of its judgment, the Court reached the conclusion that “it will not examine further whether there has been a violation of Article 3 of the Convention (art. 3)”.

The reasons for this are set out in paragraph 91, namely (a) the absence of precise evidence concerning the specific circumstances in which nine houses, including those of the applicants, were destroyed (see paragraph 18); and (b) the finding of a violation of the applicants’ rights under Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1).

I am of the opinion that since the findings of violations of both the Articles (art. 8, P1-1) mentioned stem from the salient fact that the applicants’ houses were destroyed, it is procedurally proper to examine the major claim first and abstain from examining a minor one later if the first is deemed to practically absorb the latter.  A hierarchical approach is more appropriate to attain the aim of guiding Contracting States as to the scope of their obligations under the Convention and its Protocols.

I therefore conclude that the claim under Article 3 (art. 3) should have been examined further by the Court.

DISSENTING OPINION OF JUDGE GOTCHEV

My objections in this case mainly concern the question of admissibility.  I was unable to be convinced either by the decision of the Commission of 19 October 1994, or by the judgment of the Court that the present application was admissible.

I am convinced that in this case the applicants failed to exhaust their domestic remedies as required by Article 26 of the Convention (art. 26) and that they ought to have made an attempt to seek a remedy before the courts in Turkey before coming to Strasbourg.

It is true that in accordance with the case-law of the Court the requirement of exhaustion under Article 26 of the Convention (art. 26) depends on the existence of judicial remedies in respect of the alleged violation – as well as the possibility of obtaining redress or compensation – which are sufficiently certain in theory and in practice (as stated, inter alia, in the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, para. 45).

I agree with the conclusion of the majority that under Article 26 of the Convention (art. 26) there is no requirement to exhaust domestic remedies if they are inadequate or ineffective. Undoubtedly the burden of proof is distributed where there is a dispute as to whether there exists any remedy at all under national law or whether the remedy is effective.  In such a situation it is up to the Government to produce evidence before the Court that such effective remedies exist.  However in paragraph 71 of the judgment the Court points out that the Government have produced evidence showing that the administrative courts in Turkey are applying the domestic-law rules concerning State liability.  The decisions which they have provided show that in Turkey (and particularly in South-East Turkey, where most of the decisions come from) there is a “real possibility of obtaining compensation before [the] courts in respect of injuries or damage to property arising out of the disturbances or acts of terrorism”.

The applicants suggested that the administrative court protection was not available when the damage was the result of criminal acts of members of the security forces.  In this respect it is true that, amongst the decisions produced by the Government, none concerned such a situation.  For this reason the Court concluded that there existed a doubt as to the effectiveness of the judicial remedy before the administrative courts.

But how could the Government provide the Court with such a decision if this problem has not been raised before the administrative courts?  Why could one not come to the conclusion, in the light of the decisions presented by the Government, that there exist judicial remedies which are sufficiently effective in that they result in a positive outcome for the plaintiffs even though the harm was caused by anonymous authors?

Against such a background the conclusion of the Court should be that in the instant case there exist effective remedies which the applicants failed to use and that accordingly the application should not have been declared admissible.

Such a solution, in my view, corresponds to the very important principle enshrined in Article 26 of the Convention (art. 26) and would facilitate the efforts of Contracting Parties to meet the requirements of Article 13 of the Convention (art. 13).

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret I cannot agree with the opinion of the majority of the Court on rejection of the Turkish Government’s preliminary objection, for the following reasons:

I.   ABUSE OF PROCESS

1.   In paragraph 54 of its judgment the Court dismissed the Turkish Government’s request for the application to be declared an abuse of the right of petition under Article 27 of the Convention (art. 27) on the ground that the Commission, in its findings of fact, had confirmed the applicants’ allegations about the destruction of their property.

2.  In my opinion, the fact that it is claimed the allegations are true does not make the application any less an abuse of the right of petition.  The respondent Government’s preliminary objection on this point is closely linked to their second preliminary objection, namely the plea of non-exhaustion of domestic remedies, which I shall turn to below.  The applicants, without making any attempt to exhaust existing domestic remedies, brought their applications before the international institutions – via the “Kurdish Human Rights Project” in London – with the aim of spreading anti-Turkish propaganda and the firm intention of bringing the case into the international arena in order to distort it when it should have remained to be judged according to legal criteria under the procedure established by the European Convention on Human Rights.  It is that which constitutes “abuse of process”.  Is there any need to point out that it is a universal principle of law that “manifest abuse of a right is not protected by the law”?

II.   SUBSIDIARY CHARACTER OF THE PROTECTION SYSTEM SET UP BY THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3.  It is obvious and universally recognised that the supervision system set up by the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) is subsidiary in character. Proof of this is be found in the provisions of Articles 1, 3, 26, 50, 57 and 60 (art. 1, art. 3, art. 26, art. 50, art. 57, art. 60). Article 26 (art. 26) is, par excellence, the provision in which this doctrine, to which I will return at greater length shortly, is formulated.  This arrangement has extremely important consequences for the process of applying the Convention.

4.   The European Court of Human Rights (“the Court”) has expressed this doctrine in precise, clear language in dozens of judgments and on many occasions, particularly with regard to the application of Article 5 para. 3 (art. 5-3) (assessment of the reasonableness of pre-trial detention: see the Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 23, para. 71; and the Mansur v. Turkey judgment of 8 June 1995, Series A no. 319-B, pp. 49-50, para. 52), Article 6 para. 3 (d) (art. 6-3-d) (examination of witnesses for the defence on an equal footing with witnesses for the prosecution: see the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43) and its doctrine of the “margin of appreciation” (see the Mellacher and Others v. Austria judgment of 19 December 1989, Series A no. 169, pp. 25-26, para. 45, and the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, para. 68).

5.   It must be emphasised that the principle of subsidiarity forms one of the corner-stones of the Court’s case-law.  Among dozens of possible examples I cite the following to show how the Court has expressed this principle with regard to its jurisdiction.

In the Handyside v. the United Kingdom judgment of 7 December 1976 (Series A no. 24, p. 22, para. 48) we may read:

“The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights …  The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines.  The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted

…”

After analysing the concept of “necessity”, to which it referred in that judgment with a view to defining its meaning for the purposes of the Convention, the Court went on to say: “Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of `necessity’ in this context.” (emphasis added)

6.   In his excellent study of the question, Mr H. Petzold, the Registrar of the Court, after reviewing the case-law of the Court and the work of the European Commission of Human Rights with the attention to detail which the subject merits, reaches the following conclusions:

“Subsidiarity is then a basic principle for the process of implementing the Convention.  It is implicit in the Convention, inherent in the system of protection established by the Convention, and it has been confirmed as such by the case-law of the Convention institutions.  It recognizes the primary competence and duty of the State to protect effectively within the domestic legal order the fundamental rights and freedoms enshrined in the Convention …” (pp. 59-60)

“Clearly the Convention institutions contribute to securing the enjoyment of the rights and freedoms guaranteed, but their responsibilities are secondary – in time and in extent – to those of the competent national authorities.  Their mission is essentially to guide and to assist with a view to ensuring that the Convention States secure to individuals the necessary protection through their own institutions and procedures.” (p. 61) (“The Convention and the Principle of Subsidiarity” in The European System for the Protection of Human Rights, R. St. J. Macdonald, F. Matscher and H. Petzold (eds.), Martinus Nijhoff Publishers, The Hague, 1993)

Here now is the opinion of the late Max Sørensen, the eminent jurist who made an enormous contribution to the work of the Court and the Commission:

“Whatever the formal status of the Convention in each of the Contracting States, what is certain is that respect for the rights and freedoms defined in its provisions must in the first place be sought before the national administrative or judicial authorities.  The guarantees provided in the form of the procedures before the Commission and the Court are only subsidiary in character.”  (quoted by H. Petzold in the above-mentioned article, p. 41)

7.   Can such a fundamental and important principle, of which the exhaustion-of-domestic-remedies rule (Article 26) (art. 26) is the most obvious element, be disregarded by the Convention institutions, and if so under what conditions?

III.   MEANING AND REQUIREMENTS OF THE “EXHAUSTION” RULE

8.   I will first refer to the Court’s case-law.  The Court has held: “… the rule on the exhaustion of domestic remedies delimits the area within which the Contracting States have agreed to answer for wrongs against them before the organs of the Convention” and that the rule in question “… dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system” (see, among other authorities, the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, pp. 29-30, para. 50).  And again: “[It] concerns the possibility in law of bringing into play a State’s responsibility under the Convention” (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 10, para. 18).

The purpose of Article 26 (art. 26) is to give States “the opportunity of putting right the violations alleged against them” (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 26-27, para. 72, and the Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, p. 17, para. 34).

The applicant has a duty to exhaust all remedies that are available and sufficient.  “The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied” (see the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, para. 27).

9.   In the Cardot judgment, where we find what is very nearly a complete summary of its case-law on the question, the Court upheld the objection of non-exhaustion of domestic remedies raised by the respondent Government on the ground that the applicant, by his conduct, “did not provide the French courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of preventing or putting right the violations alleged against them”.

In view of the importance of the relevant paragraphs, in that they show how meticulously and rigorously the Court ensures the impartial and strict observation of Article 26 (art. 26), I wish to quote them here at length:

“… Admittedly, Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism …, but it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given.  It normally requires also that  the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law …; and, further, that any procedural means which might prevent a breach of the Convention should have been used …

Practice in international arbitration would appear to reflect a similar approach.  An example is to be found in the award of 6 March 1956 in the Ambatielos case.  The British Government argued that legal remedies had not been exhausted, on the ground that the claimant … had not called a witness during proceedings in an English court.  The Commission of Arbitration allowed the objection in the following terms:

`The rule [of exhaustion] requires that “local remedies” shall have been exhausted before an international action can be brought.  These “local remedies” include not only reference to the courts and tribunals, but also the use of the procedural facilities which municipal law makes available to litigants before such courts and tribunals

It would be wrong to hold that a party who, by failing to exhaust his opportunities in the court of first instance, has caused an appeal to become futile should be allowed to rely on this fact in order to rid himself of the rule of exhaustion of local remedies.’

In the court of first instance Mr Cardot did not express any wish that evidence should be heard from his former co-defendants, although they said that he had played a major part in organising the smuggling of hashish …  Nor did he make any application to the Court of Appeal for such evidence to be heard …

As to his appeal on points of law, only one of the three grounds put forward related to the proceedings in respect of the former co-defendants who had been heard in that capacity at the time …  Above all, it did not rely on paragraph 3 (d) of Article 6 (art. 6-3-d) or even on the general principle in paragraph 1 (art. 6-1) and did not refer to the statements that [names omitted] had made to the investigating judge; so that it was too vague to draw the Court of Cassation’s attention to the issue subsequently submitted to the Convention institutions, namely the failure to hear prosecution witnesses at any stage of the court proceedings against Mr Cardot …” (Cardot v. France judgment of 19 March 1991, Series A no. 200, pp. 18-19, paras. 34-36).

Again, in the Van Oosterwijck judgment cited above (p. 19, para. 39), the Court declined to accept the applicant’s argument that by virtue of the principle “jura novit curia” the courts who had heard his case were obliged to consider it from the standpoint of the Convention of their own motion.  The Court held: “Whether the obligation laid down by Article 26 (art. 26) has been satisfied has to be determined by reference to the conduct of the victim of the alleged breach …”

It should be added that the Van Oosterwijck and Cardot judgments give an idea of both the content and the scope of the concept “flexibility without excessive formalism” with which the exhaustion rule has to be applied.

Let me say at the outset that in the context of compliance with the rule in question this concept cannot be interpreted so as to permit “suppositions” to be taken for “facts” which prove the lack of effective and sufficient domestic remedies.

In order to be able to reach such a conclusion – that is, in order to ascertain whether or not the existence of the domestic remedies that the respondent Government asked it to consider was “sufficiently certain” (see the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 15, para. 31) – the Court, instead of proceeding on the basis of an interpretation of certain misleading appearances, should at least have looked for prima facie evidence.  Not only did the applicants not apply to any court (or any other competent national authority), they took no steps whatever whose result could be regarded as a fact suggesting that effective and sufficient domestic remedies did not exist.  In short, the applicants’ argument is based on assumptions about the attitude of the State authorities.  It is, however, astonishing that a Court which was so strict and meticulous in the way it applied the exhaustion rule in the Van Oosterwijck and Cardot cases should be so tolerant in the present case.  If the existence of domestic remedies is required, as the Court has held, to be “sufficiently certain”, should not the same Court also require the lack of such remedies (or their insufficiency or ineffectiveness) to be established to an equal extent, that is to say, proved to be “sufficiently certain”?  The respondent Government pointed out, and pertinently so, that in the Finnish Ships Arbitration case it had been established that the exhaustion rule was applicable “unless there is an obvious futility or inefficacity which is manifest”, and that in the Panavezys-Saldutiskis case concerning Lithuania “the argument was put forward that it was absolutely uncertain in Lithuanian law whether it was possible to take proceedings in the Lithuanian courts against the Government where the Government had carried out acts iuris imperii.  The court in The Hague replied: `This does not dispense you from taking proceedings.  You have to have recourse to the Lithuanian courts, which are the only courts that can confirm whether such a remedy is acceptable or not'” (verbatim record of the hearing on 25 April 1996, Cour/Misc (96) 243/III, p. 11). Similarly, the Commission has said: “If there is doubt as to the effectiveness of a domestic remedy, the point must be taken before the domestic courts” (see application no. 10148/82, Florentino Garcia v. Switzerland, decision of 14 March 1985, Decisions and Reports 42, p. 98).  The applicants talk incessantly about “compensation for the damage they have sustained”, when there are hundreds of judgments of the administrative and civil courts awarding compensation to victims in almost identical cases.  Is it possible to say, in the light of these facts, that the non-existence of domestic remedies was certain? Neither in the Commission’s report nor in the Court’s judgment, which is based on the Commission’s suppositions, is there any factual evidence or legal argument that dispels the “doubt” as to the existence of domestic remedies to such an extent as to make the lack of such remedies “certain”.

IV.   THE INSTANT CASE

10.  I agree with the majority of the Court about what is said in paragraphs 65 to 69 concerning the general principles governing application of the rule laid down by Article 26 (art. 26), but not about the way they were applied in this case.

11.  Firstly, as regards the facts of the case (see paragraph 70), what is going on in South-East Turkey is no different from what has been happening for years in other Council of Europe countries (in Northern Ireland, the Basque country, Corsica, etc.) and there are not two kinds of terrorism.  The administrative authorities in the strict sense may well be adversely affected, but the situation does not in any way affect the administration of justice, especially as regards the independence and impartiality of the courts.

It is going too far to hold that the situation in South-East Turkey constitutes “special circumstances” such as to dispense the applicants from the obligation to have recourse to existing remedies.  In that connection, I also observe that if the fear of reprisals necessarily led them to avoid domestic remedies (see paragraph 74), the same fear also exists when they apply to the international institutions.

As regards the difficulty of securing probative evidence referred to by the Court in paragraph 70, if there is a difficulty, the same difficulty must exist when the case is brought before an international tribunal.

Besides, as we shall see presently, in compensation cases before the administrative courts the State’s liability is “strict” – “fault” does not have to be proved.

12.  Although the Court does not say so expressly in the judgment, it appears to be criticising the inactivity of the administrative authorities in such a situation and to deduce therefrom that the existing domestic remedies were of no assistance.  That is not quite true.  The witness evidence taken during the Commission’s investigation (see the Commission’s report of 26 October 1995, paragraphs 40 et seq.) shows that inquiries were made by the public prosecutor at the Diyarbakir National Security Court and that the applicants – and the other villagers – were not able at the time to identify any member of the security forces as being responsible for the acts complained of. In addition, the Court, referring explicitly to the allegations made by the Delegate of the Commission, notes the lack of any impartial investigation, any offer to cooperate with a view to obtaining evidence, or any ex gratia payments made by the authorities (see paragraph 71, third sub-paragraph in fine, of the judgment).  I wish to emphasise that the Turkish judiciary perform their duties with as much independence and impartiality as the judges of the other States party to the Convention throughout Turkish territory.  Cooperation is a two-way process!

Before concluding, in support of its assertion, that the authorities never offered or made any ex gratia payments to the applicants – in order to compensate them or relieve their suffering – the Court should have verified that they had asked for any such payments to be made.

It is clear that the applicants took every precaution to keep their distance from the authorities of the country in order not to have any contact with them so that they could claim in the final analysis that domestic remedies were inadequate and ineffective; that would give them the pretext they needed in order to be able to apply to the Strasbourg institutions.

The Turkish Government, from the outset, have continued to relieve the suffering of the population of that part of the country. Here is a summary submitted to the Court of what is being done.

“PUBLIC AID AND SOCIAL SOLIDARITY IN THE FIGHT AGAINST TERRORISM

Conscious of the extent of damage suffered in the fight against terrorism the Turkish authorities have set up an extra-judicial system of aid and social solidarity.

Section 22 of the Prevention of Terrorism Act provides for and expressly governs such aid and provides that priority aid for persons who are not public servants is to be provided from an Aid and Social Solidarity Fund.

The Government are providing herewith six files containing up-to-date information obtained from all the prefectures in the region covered by the state of emergency.

It appears from an examination of this extra-judicial network of aid and other grants that the types of aid actually provided are both multiple and inspired by a pragmatic approach: they consist of financial aid, provision of housing, building materials for housing, food supplies, clothing, fuels, rent grants.  In other words all the urgent needs of people who have suffered in any way from the fight against terrorism have been taken into account.

To cite but a few examples among the extensive aid provided to inhabitants of these regions as part of the fight against terrorism, we can refer to the county of Diyarbakir where the plaintiffs are residents.  Thus, in this county alone 500 dwellings have been allocated.  The list of beneficiaries appears in the files.

Again, in the same county, the construction of 72 dwellings scheduled for 1995 has been brought forward one year in response to the needs of families who have suffered from terrorism and ended in October 1994 with the allocation of housing.

Further, in 1994, 120 prefabricated housing units were transported from Erzincan to Tunceli and were allocated. 5,000 million Turkish pounds financed by the Emergency Aid Programme were spent on the infrastructure of this housing. Even now, electricity and water costs are met by the Tunceli Prefecture.

With respect to the county of Van, the presidency of the Aid and Social Solidarity Fund for Van provides details of aid supplied under different headings for victims of terrorism in a letter of 21 November 1995.  It states that 152 dwellings were built and given to persons who had been obliged to leave their homes as a result of the fight against terrorism.  The total cost of these buildings came to 14,039,799,000 Turkish pounds.

The information obtained from the Sirnak Prefecture is also telling (Annex 6).  In 1994 more than 51,000 million Turkish pounds and in 1995 almost 100,000 million (97,099,750,000) Turkish pounds were distributed to families victims of terrorism.  Total aid over the last three years exceeds 150,000 million Turkish pounds.

In the Sub-Prefecture of Cizre alone, 212 dwellings were built, the current cost of which comes to more than 6,000 million Turkish pounds (letter of 6 December 1995 from the Sub-Prefecture to the Prefecture of Sirnak).

The lists communicated by the Bingöl Prefecture state that 50 dwellings in the county town and 206 dwellings in the Sub-Prefecture were handed over to victims of terrorism in 1994.  One hundred and ninety-three other dwellings built in 1995 will be distributed to the persons whose names appear on the lists in the file relating to this county.

Further, 500 million Turkish pounds were spent on repairing damaged houses.

It should also be noted that 12,720 million Turkish pounds have been paid to people who wish to return to their villages, which they had left as a result of terrorism.

In the Sub-Prefecture of Genç alone approximately 6,500 million Turkish pounds were paid in Emergency Aid to persons who were victims of terrorism.

In its letter of 24 November 1995, the Siirt Prefecture draws attention to aid of 1,275 million Turkish pounds spent to finance a return to villages which had been hastily abandoned. Further, more than 500 million Turkish pounds were paid to attend to the needs of 109 villagers having sustained loss as part of the fight against terrorism.

Further, the Siirt Prefecture draws attention to the priority treatment given to rural investment and to the fact that in this context the problems of eight villages relating to drinking water and roads have been solved.

Referring to a letter of 24 November 1995 received from the Sub-Prefecture of Tatvan, the Prefecture of the county of Bitlis refers to substantial aid paid to persons who have suffered physical injury or pecuniary loss and persons who have been forced to abandon their villages.

The size of these public contributions shows the extent to which the Turkish authorities are conscious of the effect of the fight against terrorism on all aspects of individual people’s lives and of society.  It also demonstrates the determination of the Turkish authorities to find appropriate responses to all the problems and to the loss suffered, whether individually or collectively, by examining all needs, whether as individuals or as families, for housing, clothing, food, heating, immediate cash requirements (grants, rent, outgoings) and needs in respect of macro-economic investment, communications or for a return to the villages.” (see case of Akdivar and Others v. Turkey, 99/1995/605/693, Annexes 2-7 to the Government’s memorial, received at the registry on 15 March 1996, Cour (96) 113 ANN 2, Strasbourg, 18 March 1996, pp. 209-11).

As regards accessible and sufficient domestic remedies in Turkish law whose existence is sufficiently certain, I would first point out that the respondent Government have submitted to the Court roughly a hundred judgments of different courts (administrative courts, Council of State, civil courts and Court of Cassation) which cover a representative variety of situations (see Annexes 1 and 2-8, running to 316 pages, Cour (96) 111 ANN 1 and Cour (96) 113 ANN 2 respectively).  Although the applicants allege, without any facts to support that claim, that the Turkish legislation in force makes access to a court impossible in cases concerning counter-insurgency operations (which is not true), all the judgments submitted to the Court’s consideration were given by courts having territorial jurisdiction in South-East Anatolia (Diyarbakir, Van, Erzurum, etc.).

13.  The Court finds it significant that despite the extent of the problem of village destruction the respondent Government have not been able to point to examples of compensation being awarded to victims where property has been deliberately destroyed by the security forces or to prosecutions being brought against those responsible (see paragraph 71, third sub-paragraph, of the judgment).

I have already shown that the so-called inactivity of the authorities was a pure and fallacious invention by the applicants, who were themselves unable to identify those allegedly responsible during the inquiries that were conducted.

14.   If the judgments and other documents submitted by the Turkish Government – to the Commission in the first instance, and later to the Court – had been examined with the attention they merited, it would quickly have become apparent that all these judgments concerned cases of killings, intentional or unintentional homicides, destruction of houses or other property, disappeared persons or crimes committed either by members of the PKK or the security forces or by persons unknown.

15.  Admittedly, there is no judgment concerning a case exactly like the instant case, because the people in a situation identical to the applicants’ had aims other than obtaining compensation in mind, namely determination to bring their case to an international forum.  “There’s no war without warriors.”

16.  As regards the certain, accessible, effective and sufficient nature of the remedies existing in Turkish law, I entirely agree with the dissenting opinion of the two eminent members of the Commission, Mr Gözübüyük and Mr Weitzel, mutatis mutandis, expressed in the following terms:

“Certain facts of the case have been elucidated by the Commission’s investigation.  In particular, the witness statements obtained in the course of that investigation show that during the investigation conducted by the Chief Public Prosecutor at Diyarbakir State Security Court, the applicants, and moreover the other villagers, were unable to identify any member of the security forces as the perpetrator of the alleged offence.  The difficulties encountered by the judicial authorities in charge of this investigation were largely due to the lack of evidence against the security forces.

In view of these additional factors, which came to light when the Commission investigated the case, we believe that there was an effective remedy which the applicants failed to use, namely an administrative action and that, consequently, the Government’s application under Article 29 of the Convention (art. 29) should have been granted.

As has been proved by the investigation of the case, the criminal proceedings brought by the prosecution at the applicants’ instigation came to nothing owing to the lack of probative evidence.  Having regard to the nature of the complaints, which centre mainly on the destruction of houses, allegedly by the security forces, it is quite clear that in the absence of even the slightest shred of evidence, the prosecution was bound to fail.  This is unsurprising, as the rules governing criminal responsibility are inspired by the same principles in all the member States of the Council of Europe.

However, as shown by the ample documentation already submitted by the Government, which will have to be studied more attentively, and the numerous judgments of which we have obtained copies, there was an effective remedy available to the applicants which was sufficiently certain both in theory and in practice.  This body of case-law shows that other Turkish citizens faced with problems which were, ultimately, very similar to those faced by the applicants (the destruction of houses and various items of property) were able in a relatively short time to obtain satisfaction in the form of financial compensation.

The applicants did not take any such steps, however.  They merely wrote letters to certain authorities asking for compensation.  This point is worth emphasising, as it proves that the aim pursued by the applicants was indeed to obtain financial compensation.  As has been said, they could have brought an administrative action to obtain this, but omitted to take that step.  Instead of pursuing that course of action, they chose the most precarious option in the circumstances, i.e. to bring criminal proceedings.

We should emphasise here that the situation would have been entirely different if the applicants had chosen to bring an administrative action.  The victim of an administrative act may in the first instance complain of non-pecuniary or pecuniary damage by filing a preliminary application with the authorities.  The authorities must then reply within sixty days.  Should they fail to reply within that period, the application is deemed to be dismissed.  The plaintiff can then bring an administrative action by filing a simple application with the administrative court.

Applicants merely have to prove before the administrative courts that they have suffered damage in order to obtain compensation; they do not have to prove that the authorities have made an administrative error.  Once the administrative court has established that the victim has suffered loss, it determines the amount of compensation to be paid to him or her.

It should be recalled that the Supreme Administrative Court (Danistay) applies the criterion of `objective liability of the authorities’.  On the basis of that criterion, which has been applied by the administrative courts since 1965, the authorities are liable according to the principle that the burden of difficulties facing a nation should be shared by all citizens.  It is not necessary to prove fault on the part of the Government’s agents.  It is sufficient to prove that damage has occurred as a result of the act complained of.  The fact that the act in question has been committed by the authorities or by a third party does not prevent compensation from being awarded.

For example, where a vehicle was destroyed by shots fired by fighter aircraft, the Supreme Administrative Court, in its Mizgin Yilmaz v. Ministry of Defence judgment of 21 March 1995 (E. no. 1994/5656, K. no. 1995/1262), found that `even if the authorities have not been negligent, the plaintiff must be awarded compensation in accordance with the principle that all citizens must share equally the burden of any constraints arising from tasks assumed by the State in the public interest and that such compensation is a necessary consequence of the ‘social’ nature of the State … Semdinli District Court’s finding of damage and the expert report ordered by the administrative court show that the amount of compensation sought by the applicant is reasonable’.

In a case in which the driver of a car was killed by police officers when he refused to stop at a checkpoint, Diyarbakir Administrative Court, in its Sabriye Kara v. Ministry of the Interior judgment of 27 January 1994 (E. no. 1990/870 and K. no. 1994/31), held that `the authorities had a duty to compensate the damage, whether or not they were at fault or had acted negligently.  Moreover, there does not have to be a causal link between the damage and the authorities’ acts.

Where the authorities cannot avoid the adverse consequences of terrorist activities, they must pay the victims compensation in accordance with the ‘social’ responsibility assumed by the State, given that such damage results from a ‘social risk’.’

The administrative courts have delivered a plethora of decisions to the effect that the authorities have `objective liability’ (i.e. not fault-based).  These show that the case-law in this area is consistent.  We shall quote the following decisions as examples:

– Decision of the Supreme Administrative Court of 6 June 1995 in the case of Osman Kaya and Cemil Kaya v. Ministry of the Interior: this concerned the destruction of the plaintiffs’ house, loft, stable and all moveable property during fighting between the security forces and terrorists. The Supreme Administrative Court upheld Diyarbakir Administrative Court’s judgment ordering the authorities to compensate the plaintiffs in accordance with the theory of `social risk’.  The administrative court held that the concept of the authorities’ liability should not be limited to an administrative error or objective liability related to strict conditions, but should also comprise the so-called `social risk’ principle.

– Judgment of Diyarbakir Administrative Court of 10 December 1991 in the case of Behiye Toprak v. Ministry of the Interior; decision of the Supreme Administrative Court of 13 October 1993 in the same case: the plaintiff’s husband was killed by terrorists while travelling in his minibus.  The plaintiff complained of `loss of bread-winner’ and claimed pecuniary and non-pecuniary damages.  The administrative court found against the State on the basis of the theory of social risk.  It held that the authorities were obliged to compensate damage caused by third parties which they were unable to prevent despite their duty to do so, even if they were not responsible for that damage.  The Supreme Administrative Court upheld that judgment.

– Judgment of Diyarbakir Administrative Court of 28 April 1994 in the case of Münire Temel v. Ministry of the Interior: the plaintiff’s son was kidnapped and murdered by the PKK. Diyarbakir Administrative Court ordered the authorities to compensate the plaintiff for pecuniary and non-pecuniary loss on grounds of their objective liability.  It held that `all Turkish citizens have … the right to a decent standard of living … and to material and spiritual prosperity…’.  The court held that it would be contrary to the principle of equality if the State were to compensate damage suffered as a result of public services provided by its own bodies (agents), but remained indifferent to damage suffered by its citizens. The administrative court delivered this judgment after its preliminary ruling had been quashed by the Supreme Administrative Court.  The preliminary ruling had granted the plaintiff compensation for non-pecuniary damage but not for pecuniary damage.

– Judgment of Diyarbakir Administrative Court of 8 March 1994 in the case of Cüneyt Alphan v. Ministry of the Interior: the plaintiff’s house was burnt down during fighting between terrorists and security forces.  The applicant claimed damages. Diyarbakir Administrative Court held that, even where the authorities had not made an administrative error, they had to pay the applicant compensation on grounds of their `strict liability’.

– Judgment of Diyarbakir Administrative Court of 25 January 1994 in the case of Hüsna Kara and Others v. Ministry of the Interior: the plaintiff’s husband was killed by unknown persons.  The applicant sued the authorities for damages.  The administrative court ordered the authorities to compensate the plaintiff on the basis of the theory of social risk, holding that, as the plaintiff had had no part in any terrorist activity, her loss was not caused by her own negligence but by difficult circumstances facing society.

– Judgment of Diyarbakir Administrative Court of 21 June 1994 in the case of Guli Akkus v. Ministry of the Interior: the plaintiff’s common-law husband was killed by security forces during an illegal demonstration.  The administrative court ordered the authorities to compensate the plaintiff’s loss. The Supreme Administrative Court quashed that judgment on the ground that the applicant and her common-law husband were not legally married.  The administrative court upheld its own decision, however, and ordered the authorities to compensate the plaintiff.  It held that the plaintiff and her common-law husband had been living together as man and wife. It held further that the authorities should compensate damage caused by their agents, even if that damage had been caused by negligence.

The foregoing case-law shows that, if the applicants had applied to the administrative courts, they could have obtained an order against the authorities for compensation of their loss on grounds of objective liability.  The administrative courts would not have needed to establish that the soldiers had unlawfully and negligently destroyed the houses in question. They would merely have had to establish the damage and to determine the amount of compensation to be awarded.

One should not lose sight of the fact that the applicants, like all the other villagers whose houses were damaged, were seeking to obtain compensation (see paragraphs 54, 55, 56, 57, 61, 65, 66, 68, 69, 71, 73, 75 [of the Commission’s report]).

We note here that the continuing activities of the security forces did not in any way prevent the applicants from applying to the courts for compensation.  Admittedly, the PKK was very active in the area in which the applicants’ village was situated.  However, the applicants went to Diyarbakir after the events of November 1992.

Once the applicants and villagers arrived at Diyarbakir, they applied to certain public authorities, including Government authorities, i.e. the Regional Governor and the President of the Republic, for compensation (see, for example, paragraphs 83 and 99).

These applications cannot, however, be considered to be legal proceedings under Turkish law.  The applicants merely needed to consult a lawyer to learn of the possibility of bringing an action for damages before the administrative courts (see paragraph 122).

We note also, in this respect, that it has not been established before the Commission that the administrative court judges do not rule impartially in cases in which actions of the security forces are challenged.  Nor has it been proved that there is a general lack of confidence in the remedies available under administrative law in the region in question.

The evidence obtained by the Commission during its investigation into whether the complaints were founded shows that the members of Diyarbakir Human Rights Association failed to inform the applicants properly of the possibility of applying to the administrative courts (see paragraph 96) or misinformed them as to the appropriate national authorities to which they should apply (see paragraph 115).  In any event, they advised the applicants to lodge an application directly with the Commission (see paragraph 130).

It also transpires from the witness statements obtained by the Commission that the real aim of the members of Diyarbakir Human Rights Association in lodging several individual applications was to argue before the international courts that domestic remedies were ineffective in an area which had been declared to be in a state of emergency (see paragraphs 115 and 130) and that they gave the applicants bad advice.

Consequently, we believe we have shown that the applicants had an effective remedy in Turkish law in that they could have submitted to the administrative courts the complaints which they now raise before the Commission.  Although the financial compensation which they stood to gain flowed from the principle of the State’s objective liability for acts allegedly committed by the security forces, such compensation cannot be paid until the administrative courts have established that damage has been caused due to the State’s failure to comply with its duty to strike a fair balance between individual rights and the legitimate rights of the general public.  Such a finding would have been sufficient compensation for the non-pecuniary loss suffered by the interested parties, especially as, in this case, they confined their claims to compensation for the losses suffered.”

17.  I now turn to a judgment of the Court of Cassation in which it was held that the civil courts had jurisdiction in respect of damage sustained as a result of the actions of State officials.

“Brief summary of judgment CC2

4th Civil Division of the Court of Cassation – judgment of 17 November 1986

The Court of Cassation quashed the judgment of the court of first instance dismissing the plaintiff’s action in damages against the Ministry of the Interior and two police officers who had allegedly tortured him during interrogation on suspicion of homicide.  According to the judgment, as the identity of the torturer could not be established, the authorities could not be held liable for the personal fault of their agents.

The Court of Cassation, however, held that:

(a) acts such as torture committed by public servants which could not under any circumstances be qualified as administrative acts became unlawful acts and therefore acts governed by the Code of Obligations;

(b) Article 129/5 of the Constitution which provided that actions in damages resulting from faults committed by public servants in the exercise of their powers must be brought against the authorities, was not an absolute rule and did not apply to unlawful acts which manifestly exceeded any exercise of power or authority.  On the contrary, public servants were not entitled to benefit from this constitutional safeguard in such circumstances;

(c) further, the fact that there had been an acquittal through lack of evidence was not binding upon the civil courts. On the contrary, it was necessary to take into account the plaintiff’s statement to the effect that he had identified one of the policemen who had tortured him.

For these reasons, the Court of Cassation held that the civil courts had jurisdiction in respect of unlawful acts committed by a public servant who had exceeded his powers.” (case of Akdivar and Others v. Turkey, Annexes 2-7, Cour (96) 113 ANN 2, p. 200; see also the other judgments of the same type on pages 202, 205 and 206)

18.   There were therefore three kinds of domestic remedy – in the administrative, civil and criminal courts.  I admit that the remedy with the least prospects of success was the criminal one, since under Turkish law it is not possible, as it is under French law, either to lay an information against a person or persons unknown before the judge having jurisdiction or to lodge a civil party application with the criminal court which sets criminal proceedings in motion.  In addition, it should not be forgotten that where the offenders in a criminal case are not identified the strict liability principle is inoperative. However, it is possible to speculate that if the applicants deigned to apply to the administrative or civil courts the resulting proceedings would provide an opportunity to identify those responsible.

19.  Like the applicants, the Commission and the Court seem to criticise and turn to their own account the inactivity and insensitivity of the authorities in the face of these regrettable events in order to reach the conclusion that existing remedies were inaccessible and/or ineffective or insufficient (see paragraph 73, first sub-paragraph).  In the first place, as I have already said (see paragraph 8 above), that assertion is not correct.  Secondly, one can criticise the conduct of the administrative authorities if one wishes to do so.  Under a political regime where there is a separation rather than an amalgamation of powers and where the judiciary is independent and impartial vis-à-vis the other branches of State authority, I wonder how the conduct of the administrative authorities can influence the administration of justice.  If at the same time the immobility of the courts is criticised, how is it possible for a court to deal with a case of its own motion or for the prosecuting authorities to perform their duties if those directly concerned do not help them to do so in such situations?

20.   The second sub-paragraph of paragraph 73 contains suppositions which, taken to be real facts, were given as the reasons for not requiring compliance with such an imperative requirement for the application of the Convention as the exhaustion-of-domestic-remedies rule.  These assertions, which were pure suppositions at the time when the Court considered the case, would now be shown to be true or false if the applicants had applied in the first place to the Turkish courts before submitting their case to the international institutions.  If the latter had not then been satisfied with the result, they would have been able to rule on the merits of the case in full knowledge of the facts instead of proceeding by supposition and deduction.

Lastly, the Court took the view that the existing remedies were not adequate and sufficient because they were not appropriate to the complaints raised by the applicants (see paragraph 72 of the judgment).

The function of the Strasbourg institutions does not depend on the applicants’ claims.  The Convention itself defines their powers, namely finding that there has or has not been a breach of one of its provisions (Articles 19, 31 para. 1, 45 and 50) (art. 19, art. 31-1, art. 45, art. 50), but not verifying whether there was a domestic remedy whereby “those responsible for the applicants’ complaints could be identified”, as they would have wished.

States are free to choose what means they should employ to achieve the aim of the Convention, namely “to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention”.

21.  Even supposing that a potential applicant is free to choose one of a number of different domestic remedies, what must we say of a case like this one, where the applicants have not chosen any?

22.   Consequently, the applicants did not give the Turkish courts the opportunity, which Article 26 (art. 26) is intended to afford to Contracting States, of putting right the violations alleged against them.  The objection of non-exhaustion is accordingly well-founded. The Court cannot deal with the merits of the case, for failure to exhaust domestic remedies.

23.   The above considerations dispense me from stating my views on the merits of the case.

1 The case is numbered 99/1995/605/693.  The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

3 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but a copy of the Commission’s report is obtainable from the registry.

CHAPPELL v. THE UNITED KINGDOM JUDGMENT

CHAPPELL v. THE UNITED KINGDOM JUDGMENT

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

PARTLY DISSENTING OPINION OF JUDGES RYSSDAL AND FOIGHEL

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

PARTLY DISSENTING OPINION OF JUDGES RYSSDAL AND FOIGHEL

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

DISSENTING OPINION OF JUDGE GOTCHEV

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

DISSENTING OPINION OF JUDGE GOTCHEV

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

AKDIVAR AND OTHERS v. TURKEY JUDGMENT

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

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