EHRM, 12-01-2006, nr. 18888/02

According to this document, at the time of the burning down of his house and the eviction of the inhabitants from Eğrikavak village, the applicant owned three hundred sheep, one hundred goats, one horse, six hundred trees, one TV set, one refrigerator, one bed and fifty kitchen utensils.

It appears from this document that the applicant owns five plots of land in Eğrikavak.

This report was prepared by a commission of inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,523 hamlets were evicted and forced to move to other regions of the country. The number of people evicted from 183 villages and 823 hamlets in the province of Tunceli, which includes Eğrikavak village, was estimated to be around 40,933. The detailed content of this report can be found in the Court's judgment of Doğan and Others v. Turkey (nos. 8803–8811/02, 8813/02 and 8815–8819/02, §§  31–35, ECHR 2004-…).

This Resolution gives a detailed account of the abuses by members of the Turkish security forces and urges the Turkish Government to take the necessary administrative, judicial and legislative measures to halt human rights violations (Doğan and Others, cited above, § 36).

This report was prepared by a working and monitoring group composed of five scholars and experts commissioned by the TESEV (hereafter ‘TESEV report”). It contains the findings of the working and monitoring group subsequent to field researches they had conducted in Diyarbakır, Batman, Hakkâri and Istanbul. The TESEV report examines the problems arising from the implementation of Law no. 5233 on compensation for losses sustained as a result of terrorism or the fight against terrorism. It also aims to suggest policy proposals to the Government, national and international bodies and NGOs.

According to the TESEV report, there are serious problems concerning the return of internally displaced persons (‘IDP”) to their villages. Firstly, IDPs are unable to fund their travel and removal expenses in order to return to their villages from the cities. Secondly, the infrastructure of the villages is not in a good shape. In most villages there is no electricity, water, mains or health services. Thirdly, IDPs still worry about the lack of sufficient security in their former places of residence on account of intimidation by the PKK, military operations and clashes or possible pressure exerted on them by the State authorities to agree to become village guards. Finally, non-governmental organisations point to the presence of land mines which cause the death or injury of people living in the region.

The TESEV report welcomes the enactment of Law no. 5233 and considers it a positive step towards redressing the human rights violations caused by the forced displacements. However, it is unclear whether persons who left the country can benefit from the Law in question. It appears that the a majority of IDPs misconceive the rights contained in the Law. Although Law no. 5233 provides a remedy for cases of death or injury, most IDPs consider that the Law is confined to cases of forced evacuation of villages. Furthermore, since Law no. 5233 includes the term ‘terrorism” in its title, IDPs generally think that they might be considered terrorists if they lodged an application under the Law and complained about the State. Some IDPs think that the remedy envisaged by the Law falls far short of meeting their needs since it does not offer sufficient compensation and there is no possibility of bringing the perpetrators of unlawful acts to justice. Moreover, Law no. 5233 does not contain a right to non-pecuniary damages. IDPs therefore prefer to lodge an application with the European Court of Human Rights.

As regards the implementation of Law no. 5233, there are three major problems. Firstly, the members of the compensation commissions have a very limited margin of appreciation in rendering decisions. Secondly, even if they are in good faith, the members of the compensation commissions, who are civil servants, do not want to take any risks and therefore expect the Government to demonstrate a clear political will in implementing the Law. Thirdly, some of the commission members seem to be prejudiced towards IDPs, considering them to be opportunists and/or PKK sympathisers who want to misuse the Law.

The burden of proof on the victims to prove their claims used to be a major problem. However, subsequent to decision no. 9239 of the Council of Ministers, on 15 September 2005, claimants can prove their allegations by means of any information or document.

Concerning the composition of the compensation commissions, it was noted that the majority of their members are civil servants. Accordingly, in the eyes of the victims there are doubts about their independence and impartiality.

It was recommended that the Law should stay in force for another year so that justice can be done and the process of redress achieve its aim.

Consequently, the TESEV report makes a number of other recommendations with a view to tackling the problems of the IDPs and to establishing peace and security in south-east Turkey.

The documents listed below concern the inability of the administrative and judicial authorities to visit or to conduct on-site inspections in the villages of Ovacık on account of the lack of security in the area.

The Government claimed that the Damage Assessment and Compensation Commissions (‘compensation commissions”) established to provide an effective domestic remedy for the grievances of persons who were affected either by terrorism or the acts of the security forces in combating terrorism had become fully functional. In this connection they furnished the Court with copies of decisions and declarations issued by these bodies with a view to demonstrating the effectiveness of the new remedy offered by the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism.

The Government submitted a copy of three judgments rendered by the Supreme Administrative Court. In an appeal lodged with the latter court (decision no. 2000/5120, on file no. 1999/2162, 11 October 2000) against the judgment rendered by the Erzurum Administrative Court, the appellant, Mr Ömer Akakuş, alleged that he had left his village in the province of Ağrı on account of terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since 1993. The Supreme Administrative Court acceded to his request and overruled the first-instance court's judgment. The former court noted that the appellant had left his village owing to the terrorist incidents and not at the request or on the instructions of the authorities. On that account, it considered that, even if the damage sustained by the appellant could not be ascribed to the authorities and though there was no ‘causal link”, the authorities were liable since they had failed to prevent terrorist incidents and maintain security.

The Supreme Administrative Court delivered judgments with similar conclusions in the cases of Muammer and Burhan Gürtürk (decisions nos. 2001/4431-35, on files nos. 2000/4372 and 2000/4997, 5 December 2001).

According to this list, 800 persons, whose applications are pending before the Court, have also applied to the Diyarbakır Compensation Commission and claimed compensation for the damage they incurred as a result of their inability to gain access to their possessions in their villages. In their petitions to the Diyarbakır Compensation Commission, 110 persons, whose names appear on this list, indicated their addresses as being in their villages.

The Government raised an objection to the Court's jurisdiction, arguing that the applicant had failed to exhaust domestic remedies and to comply with the six-month rule as required by Article 35 § 1 of the Convention.

The Government submitted that the applicant had failed to exhaust domestic remedies as he had not availed himself of the new remedy offered by the Compensation Law of 27 July 2004. In that connection they claimed that the mechanism which they had set up subsequent to the Doğan and Others judgment of 29 June 2004 was capable of providing redress in respect of the applicant's complaints and offered a reasonable prospect of success.

Following the entry into force of the new Law, compensation commissions had been set up in seventy-six provinces. In a period of less than one year 170,000 applications had been lodged with the compensation commissions, which had clearly demonstrated that the new remedy was accessible to all and that the public trusted the just functioning of the newly established domestic remedy. The compensation commissions continued to receive applications from claimants and the Law would be amended so as to extend the time-limit for lodging an application with the compensation commissions by one more year, namely, until 27 July 2006. The awards made by the compensation commissions also proved that the remedy in question was an effective one and ensured success (see paragraphs 28–40 above).

The Government averred that currently there was no obstacle preventing the applicant from returning to his village and that he could seek compensation under the new Law for the damage he had sustained on account of his inability to gain access to his possessions in his village. In the Government's opinion, complaints such as those raised by the applicant in the instant case should in principle be redressed under the domestic law. That being so, the new Compensation Law, which had been inspired by the guiding principles laid down by the Court in the Doğan and Others judgment, had been enacted to enable the Turkish authorities to remedy at domestic level the Convention grievances of persons who had suffered damage as a result of terrorism or of the acts of the security forces in combating terrorism. It further aimed at alleviating the workload of the Court by reducing the number of applications lodged with it.

Consequently, the Government asked the Court to acknowledge the existence at domestic level of an effective remedy in respect of ‘return-to-village applications” and to reject the present application for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

The Government submitted, in the alternative, that there existed administrative, criminal and civil-law remedies capable of affording redress for the applicant's complaints and leading to an award of compensation (see Doğan and Others, cited above, §§  94–97). They maintained that the applicant had also failed to comply with the six-month rule under Article 35 § 1 of the Convention since the alleged incident had taken place in 1994 and the applicant had applied to the authorities in 2001.

The applicant disputed the Government's submissions and alleged that the new remedy introduced by the Compensation Law of 27 July 2004 could not be regarded as effective.

The applicant challenged, primarily, the composition of the compensation commissions. Referring to the Court's considerations in its admissibility decision in the case of Xenides-Arestis v. Turkey ((dec.) no. 46347/99, 2 September 2004), the applicant claimed that the compensation commissions could not be regarded as ‘national authorities” capable of providing an effective remedy within the meaning of Article 13 of the Convention. In this respect he pointed out that these commissions were composed of six civil servants who were appointed by a provincial governor and a lawyer appointed by the bar association of each province. Thus, in his opinion, there were insufficient guarantees that the members of the compensation commissions would act impartially and independently of their hierarchical superiors.

The applicant maintained that the proceedings before the compensation commissions were not of an adversarial nature given that the friendly-settlement declarations prepared by the commissions were subject to the approval of the governor or of the Minister of the Interior. The commissions did not communicate to the complainant the documents submitted by the authorities and therefore deprived the claimant of the opportunity of bringing counter-evidence to prove his or her claim. Furthermore, section 8 of the Compensation Law referred only to negligence on the part of the claimant and did not take into account fault or negligence on the part of the authorities in determining the damage suffered by the claimant.

The applicant also pointed out that section 7 of the Compensation Law did not cover all types of damage and gave a narrow interpretation of the concept of ‘possessions”, which had been defined by the Court to cover the income derived from pasture, grazing and forest land as well as stockbreeding and tree-felling (see Doğan and Others, cited above, § 139). Nor did the Compensation Law extend to covering non-pecuniary damage suffered by internally displaced persons, but merely envisaged pecuniary damage. Even assuming that non-pecuniary damage could be claimed before the administrative courts, that did not provide an effective remedy owing to the statutory time-limit laid down under the administrative law, namely that a claim had to be lodged with the administrative courts within one year of the act complained of.

The applicant further asserted that his application should not be declared inadmissible in the light of the new preliminary objection raised by the Government given that at the time he had lodged it with the Court, his application had met all the admissibility conditions. The Government's objection on grounds of non-exhaustion had already been examined and dismissed by the Court in its judgment in the case of Doğan and Others (cited above, § 110) which raised similar issues to his application. In the aforementioned ‘pilot case”, the Court had identified the presence of a systemic and structural problem which had affected at least 380,000 persons and had led to the submission of approximately 1,500 applications to the Court. In that connection the applicant submitted that the Court's approach to the problem should be the same as the one adopted in the case of Broniowski v. Poland ((friendly settlement-just satisfaction) [GC], no. 31443/96, §§ 35–36, 28 September 2005). Accordingly, the applicant submitted that the most effective solution in his case and in other ‘return-to-village applications” would be to reach a friendly settlement with the assistance of the Court.

Finally, the applicant alleged that the administrative, criminal and civil remedies referred to by the Government were ineffective and did not provide any prospect of success for his complaints. He also claimed to have complied with the six-month rule since the acts complained of in the present case amounted to a continuing situation.

The Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts. Yet, the rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see, for example, Kudła v. Poland [GC], no. 30210/96, §  152, ECHR 2000-XI, cited in both Charzyński v. Poland, no. 15212/03, and Tadeusz Michalak v. Poland, no. 24549/03, decisions of 1 March 2005).

In this respect, the burden of proof is primarily on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, 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 discharged, 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 Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210–11, §§  65–69, and Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997-VIII, p. 2706, §  57).

Nevertheless, according to the ‘generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. However, 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 Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).

The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, §  47, 22 May 2001, and Brusco, cited above). In particular, the Court has previously departed from this general rule in cases against Italy, Croatia, Slovakia and Poland concerning remedies in respect of the excessive length of proceedings (see Brusco, cited above, Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX; and Charzyński and Tadeusz Michalak, both cited above).

The Court recalls that it has already examined the Government's objections concerning the non-exhaustion of the administrative, criminal and civil remedies and six-month rule in respect of the ‘return-to-village cases” in its Doğan and Others v. Turkey pilot judgment (cited above, §§ 102-10 and 111-14) and has rejected them. It finds no particular circumstances in the instant case which would require it to depart from its findings in the aforementioned case and therefore dismisses them in the instant case as well.

Accordingly, the Court must confine its examination to the new remedy introduced by the Compensation Law of 27 July 2004 and must determine whether the Government's objection that the applicant has failed to exhaust this particular domestic remedy is well-founded.

In this connection the Court observes at the outset that the applicant can at present return to his village without any hindrance by the authorities (see paragraph 60 above). Indeed, this has not been disputed by the applicant. Turning to the new remedy in question, it notes that under section 6 of the Compensation Law persons who have suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism are entitled to lodge a claim with the relevant compensation commission (see paragraph 48 above). Such claims can be proved by means of any information or document (see paragraph 49 above). Section 7 lists the types of damage to be compensated and covers the damage sustained by persons who could not gain access to their property, like the applicant in the present case, as a result of the acts carried out by the authorities (see paragraph 45 above). After determining the damage suffered by the claimant, the compensation commission prepares a friendly-settlement declaration and makes an offer to the claimant (see paragraph 50 above). Should the claimant accept the offer, he or she signs the declaration and the Ministry of the Interior pays the amount of compensation specified in it (see paragraphs 50 and 51 above). However, the claimant may refuse the amount proposed by the compensation commission and seek a remedy in the ordinary courts (ibid.).

In the light of the above, it appears that the applicant is entitled to claim compensation under the new Law for the damage he allegedly sustained as a result of the authorities' refusal to allow him to gain access to his possessions for a substantial period of time.

As regards the effectiveness of the remedy in question, the Court notes that the compensation commissions seem to be operational in seventy-six provinces, including Tunceli and Diyarbakır, which can be considered the epicentre of the internal displacement phenomenon, and that there are already 170,000 persons seeking a remedy before these commissions (see paragraph 14 above). It can be seen from a substantial number of sample decisions furnished by the Government that persons who have sustained damage in cases of denial of access to property, damage to their property or death or injury can successfully claim compensation by using the remedy offered by the Compensation Law (see paragraphs 28–40 above). Thus, these decisions demonstrate that the remedy in question is available not only in theory but also in practice.

However, relying on the Court's findings in Xenides-Arestis (cited above), the applicant challenged the composition of the compensation commissions and argued that the proceedings before them were not adversarial in nature. The Court considers that the circumstances of the present case differ from those of the Xenides-Arestis case. In the latter case the reason that led the Court to express concern about the composition of the compensation commission was that the majority of its members were living in houses owned or built on property owned by Greek Cypriots and that there was therefore a potential conflict of interest which could unduly affect the decisions of the compensation commission.

In the instant case the Court does not find any evidence on which to call into question the composition of the compensation commissions and the proceedings before them. These bodies do not assume the task of a ‘tribunal” and do not therefore need to provide adversarial proceedings for the purposes of Article 6 of the Convention. Having regard to the duties conferred on them and to their individual members, who sit on account of their expertise in various fields, the compensation commissions merely serve to enable the authorities to determine the damage sustained by individuals and to make a friendly-settlement offer either in kind or in cash.

With regard to the alleged narrow interpretation by the compensation commissions of the concept of ‘possessions” under Article 1 of Protocol No. 1, the Court notes that the decisions of the compensation commissions demonstrate that compensation can be obtained not only for damage to property but also for deprivation of a wide range of economic activities, such as loss of income derived from agriculture, tree-felling or stockbreeding (see paragraphs 29–32 above).

Furthermore, while it is true that the Compensation Law refers only to the possibility of claiming compensation for material damage (see paragraph 44 above), it appears that section 12 of the Compensation Law opens an avenue to the possibility of seeking non-pecuniary damages in the administrative courts (see paragraph 50 above).

In view of the foregoing, the Court is not persuaded by the applicant's arguments and considers that the provisions of the Compensation Law are capable of providing adequate redress for the Convention grievances of persons who were denied access to their possessions in their places of residence and, accordingly, satisfy the ‘effectiveness” test established in the Doğan and Others judgment.

As to the applicant's contention that he should not be required to exhaust the new remedy offered by the Compensation Law, which had entered into force after he had lodged the present application with the Court, the Court acknowledges that, as stated above (see paragraph 72 above), the assessment of whether domestic remedies have been exhausted is normally made with reference to the date of the introduction of the application. However, in exceptional cases the Court may adopt a different position and depart from this rule if the circumstances of those cases justify such a departure (see the decisions of Charzyński and Tadeusz Michalak, both cited above). The Court considers that there are several factors which favour an exception from this rule in the present case as well. As noted earlier, section 7(c) of the Compensation Law covers the type of damage suffered by the applicant and entitles him to claim compensation. It also appears that the Compensation Law was enacted to remedy at domestic level the Convention grievances of persons whose applications pending before the Court raise similar issues to the case of Doğan and Others (see paragraph 60 above). Furthermore, recent practice of the compensation commissions indicates that the new remedy is accessible and provides reasonable prospects of success (see paragraphs 28–40 above).

Moreover, as pointed out by the applicant (see paragraph 68 above), the most appropriate strategy to be followed in situations where the Court points to structural or general deficiencies in national law or practice is to ask the respondent Government to review, and where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court (Broniowski v. Poland judgment ([GC], no. 31443/96, § 191, ECHR 2004-…). Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers of the Council of Europe, to take, retroactively if appropriate, the necessary remedial measures in accordance with the subsidiary character of the Convention, so that the Court does not have to repeat its finding in a lengthy series of comparable cases (ibid., § 193). Otherwise, in the long run, that situation might undermine the effective operation of the human rights protection mechanism set up by the Convention.

Thus, the Court notes that in its judgment in the case of Doğan and Others it has already identified the presence of a structural problem with regard to internally displaced persons and indicated possible measures to be taken in order to put an end to the systemic situation in Turkey. Subsequent to the aforementioned judgment, the authorities of the respondent State have taken several measures, including enacting the Compensation Law of 27 July 2004, with a view to redressing the Convention grievances of persons who were denied access to their possessions in their villages. Accordingly, the Government can be deemed to have fulfilled their duty to review the systemic situation at issue and to introduce an effective remedy.

In the light of the foregoing, the Court considers that the applicant should be required by Article 35 § 1 of the Convention to lodge an application with the relevant compensation commission under the Law of 27 July 2004 and to claim compensation for the damage he sustained as a result of his inability to gain access to his possessions. Furthermore, it finds no exceptional circumstances capable of exempting him from the obligation to exhaust domestic remedies.

It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.