THIRD
SECTION
CASE OF SOYLU v.
(Application no. 43854/98)
JUDGMENT
This judgment will become final
in the circumstances set out in Article 44 § 2 of the Convention. It
may be subject to editorial revision.
In the case of Soylu v.
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
judges,
and Mr S. Quesada,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 43854/98) against the
2. The applicant, who had
been granted legal aid, was represented by Mrs G. Altay and Mr S. Okçuoğlu,
lawyers practising in
3. The applicant alleged that
State security forces had destroyed his home and possessions and had forced him
to leave his place of residence with no possibility to return and that he had
been denied an effective remedy in domestic law in violation of Articles 3, 8,
13 and 14 of the Convention and Article 1 of Protocol No. 1.
4. The application was
transmitted to the Court on
5. The application was
allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. On
7. By a decision of
8. The applicants and the
Government each filed further written observations (Rule 59 § 1). The parties
replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in
1954 and lives in
A. The applicant's version of the
facts
10. Until April 1994 the
applicant lived in Nurettin, a
11. On 27 November 1993 soldiers, accompanied by persons wearing masks, raided Nurettin village. They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the State as village guards. They beat up fifteen young men. The soldiers then chose twenty houses and set them on fire after throwing a white powder on them. The houses of the applicant's brother and cousin completely burned down.
12. Following this event, the villagers lived in fear for their security. Some of them left the village, and the rest, including the applicant, preferred to stay. The security forces visited the village two or three times a week in order to force the inhabitants to agree to become village guards.
13. In April 1994 the heads of
approximately thirty families agreed under pressure to become village guards. However,
these newly recruited village guards, protected by the State, also burned down
eight or nine houses per day. The applicant's house was also burned down, which
forced the applicant and his family to leave the village and settle in
Malazgirt district. In the meantime, the village guards cultivated the
applicant's lands, used the remainder of the materials left from his house and
chopped and sold his poplar trees. Since the applicant could not overcome the
economic difficulties to sustain his living he moved to
14. On
B. The Government's version of the
facts
15. The applicant left Nurettin village of his own free will and not under any pressure by the State security forces or village guards.
16. On
17. On
18. On
19. On
20. On
21. By a decision of
22. On
23. On
24. On the same day, the gendarme officers carried out an on-site inspection on the premises of the applicant's house in Nurettin village. They drew up a report in which they observed that there was no evidence that the house had been burned down. It appeared that the house had been demolished as a result of natural forces and lack of care. It was also noted that the applicant owned land measuring 10,200 square metres which could not contain the number of trees allegedly owned by the applicant. They further observed that the applicant had already cut six of his trees before moving to Malazgirt. The gendarme officers also drew up a sketch-map of the village.
25. On 16 May 2001 the Malazgirt Assize Court decided to defer the criminal proceedings against the village guards for five years in accordance with Article 1 § 4 of Law No. 4616 on Conditional Release, Deferral of Criminal Proceedings and Sentences. In the absence of any appeal, this judgment became final. However, this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within five years' time.
26. On
27. The applicant stated that
in 1994 he had moved out of Nurettin village due to the intimidation by the
village guards and that, fifteen days or a month after his departure, his house
had been burned down by some of the villagers whose identity he did not know
nor why they did so. In response to a question whether the State authorities
forced him to agree to become a village guard, the applicant stated that no one
had exerted pressure on him or his family. The applicant further stated that
the allegation that the houses of those who did not agree to become village
guards were burned down was untrue. When asked about the number of trees he
owned, the applicant claimed that he owned - together with his brother and
cousin - three thousand poplar trees, and not thirty thousand. The applicant also
stated that he possessed land measuring 600 dönüm
together with his brother and cousin and that he had not cultivated this land
since 1994. In reply to a question whether he and his family had been affected
by the terrorism in the region, the applicant stated that his son F.S. had been
an active member of the PKK, that he had served a twelve years' prison sentence
following his arrest and conviction and that therefore the PKK had not
intimidated his family. Given that his wife's father had worked at the same
time as a village guard, the State security forces had not intimidated his
family either. The applicant finally noted that he had lived in
28. The applicant's fellow villagers, Z.T., N.B. and H.Ç. stated that the authorities had not forced the villagers to agree to become village guards but, on the contrary, the villagers themselves had wished to become village guards since they would receive salaries from the State. However, some of the villagers, including the applicant and his family, had left the village on account of economic difficulties. In their opinion, the applicant had left the village because his son had joined the PKK and his brother had also moved out of the village earlier. The allegation that the applicant's house had been burned down by the village guards was untrue since the applicant's father-in-law was one of the village guards and he would not set his daughter's house on fire. The applicant's house had been demolished as a result of bad weather conditions and lack of care. The applicant could not own thirty thousand poplar trees given that the total number of trees in the village did not equal this number. The applicant possessed 60-70 dönüm of land together with his brothers. In 2002 he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands. Nobody had forced the applicant to leave the village. In the opinion of these witnesses, the applicant and a few other villagers had made such allegations in the hope that they would obtain some money.
29. Finally the Government pointed
out that on
30. In that connection, Damage Assessment and Compensation
Commissions were set up in seventy-six provinces. Persons who had suffered
damage as a result of terrorism or of measures taken by the authorities to
combat terrorism could lodge an application with the relevant compensation
commission claiming compensation.
31. The
number of persons applying to these commissions had already reached
approximately 204,000. Many villagers had already been awarded compensation for
the damage they had sustained.
II. RELEVANT DOMESTIC LAW
32. A full description of the
relevant domestic law may be found in Yöyler
v. Turkey (no. 26973/95, §§ 37-49,
THE LAW
I. THE GOVERNMENT'S PRELIMINARY
OBJECTIONS
33. In their supplementary observations dated 9 January 2006, the Government raised a preliminary objection concerning non-exhaustion of domestic remedies in the light of the 'Law on the Compensation of Losses Resulting from Terrorist Acts and the Measures Taken against Terrorism' adopted on 14 July 2004 (Compensation Law). This Law provided for a sufficient remedy capable of redressing the Convention grievances of the applicant who had suffered damages during the authorities' struggle against terrorism. The Government therefore asked the Court to reject this application for non-exhaustion of domestic remedies and to require the applicant to avail himself of the new remedy introduced in domestic law.
34. The applicant disputed the Government's objection and argued that he could not be required to exhaust a new remedy after the admissibility decision of the Court.
35. The Court recalls that in
its admissibility decision of
II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
36. The applicant alleged that his forced eviction from Nurettin village and destruction of his house and possessions by the State security forces as well as his inability to return to his village had given rise to breaches of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which reads in so far as relevant as follows:
Article 3
No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.
Article 8
1. Everyone has the right to
respect for his private and family life [and] his home...
2. There shall be no interference
by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.
Article 1 of Protocol No. 1
Every natural or legal person is entitled to
the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
37. The applicant submitted
that his forcible eviction from his family home and deliberate destruction of
his property by the State security forces constituted a violation of his right
to peaceful enjoyment of his possessions and his right to respect for his
family life. He contended that the circumstances surrounding the destruction of
his property and his eviction from his village also amounted to inhuman and
degrading treatment. Furthermore, the applicant disputed the veracity of his
statements dated
38. The Government denied the factual basis of the applicant's complaints and submitted that they were unsubstantiated. Relying on the findings of the investigating authorities and the testimonies given by a number of witnesses, the Government maintained that the applicant had left his village of his own will and that the security forces had not forced him to leave. Nor had the security forces burned the applicant's house or any other houses in Nurettin village.
39. The Court is confronted with a dispute over the exact cause of the
events giving rise to the present application. Accordingly, it must primarily
have regard to the general situation prevailing in the region at the time of
the alleged events. In this connection it observes that at the relevant time
violent confrontations had taken place between the security forces and members
of the PKK in the state-of-emergency region of
40. This being so, it should
be pointed out that both the European Commission of Human Rights and the Court
have previously embarked on fact finding missions in similar cases in Turkey
where the State security forces were allegedly the perpetrators of the unlawful
destruction of property (see, among many others, the above cited judgments of Akdivar and Others and Yöyler; and İpek v.
41. It is a matter of regret for the Court that it is unable to attempt to establish the facts of the present case by embarking on a fact finding exercise of its own by summoning witnesses. However, it considers that such an exercise would not yield sufficient evidence capable of establishing the true circumstances of the case, given that the passage of a substantial period of time, almost eleven years in the instant case, makes it more difficult to find witnesses to give testimony and takes a toll on the capacity of a witness to recall events in detail and with accuracy (see İpek, cited above, § 116). Accordingly, the Court must reach its decision on the basis of the available evidence submitted by the parties (see Pardo v. France, judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28, cited in Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004).
42. As noted earlier and having regard to its previous findings in a number of cases concerning the evacuation and destruction of villages in south-east Turkey at the relevant time, the applicant's allegations that he had been forcibly evicted from his village and that his house had been burned by State security forces cannot be discarded as being prima facie untenable (see among other authorities, the judgments of Akdivar and Others, Selçuk and Asker, Menteş and Others, Bilgin, Dulaş, Yöyler and İpek, all cited above). However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of beyond reasonable doubt, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161).
43. In view of the above
considerations, the Court observes that, subsequent to the receipt of the applicant's
criminal complaint, the local authorities carried out an investigation into his
allegations. In this context, statements were taken from a number of persons. A.K.,
who carried out the removal of the applicant's household property from Nurettin
to Malazgirt, stated that the applicant's house was intact on the day of the removal
(see paragraph 17 above). Furthermore, in their oral evidence to the
44. This being so, the Court notes that the applicant waited until 19 June 1997 - more than three years - to file a complaint with the public proseccutor's office about the alleged events. He has offered no explanation for his remaining totally inactive after he had left the village. He has not explained the reasons for his failure to intervene in the proceedings which were commenced by the Malazgirt Chief Public Prosecutor's office or his failure to pursue his case subsequent to lodging a complaint with the prosecuting authorities.
45. Furthermore, the applicant did not submit any eye-witness statement in relation to the burning down of his house and possessions by the village guards. Nor did he give any particulars as to the identity of the persons involved in the alleged events. Moreover, the applicant has also failed to provide any evidence, such as written statements from other villagers, which would rebut the testimonies of the Government's witnesses and the findings of the national authorities. The Court notes in this connection that the witness testimonies provided by the Government were consistent and their accounts are backed up by the on-site investigation report.
46. In view of the unexplained delay on the part
of the applicant to lodge his complaint with the authorities and his complete
failure to rebut the testimonies of the witnesses, the Court does not find it
established to the required standard of proof that the applicant's house was
burned down or that he was forcibly evicted from his village by the State
security forces.
47. As regards the applicant's alleged prevention from returning to his village, the Court observes that the applicant did not provide any information or evidence to substantiate his allegation concerning the authorities' denial of access to his village. In particular, he did not explain when and by whom he was prevented from having access to Nurettin or the use of his property. The Court considers, therefore, that the applicant has also failed to corroborate his allegation that he was forced to leave and denied access to his village by State security forces.
48. Against this background, the Court concludes that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION
49. The applicant complained
that he had been denied an effective remedy with which to challenge the
destruction of his house and his forced eviction as well as his being prevented
from returning to his village by the security forces. He relied on Article 13 of
the Convention, which reads:
Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been committed by
persons acting in an official capacity.
50. The applicant contended that he had had no effective remedy in respect of his Convention grievances as demonstrated by the failure of the authorities to carry out an adequate investigation into his complaints.
51. The Government contended that there had been no shortcomings in the investigation and that the authorities had conducted an effective inquiry into the applicant's allegations.
52. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an arguable complaint under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law, in particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Dulaş and Yöyler, both cited above, §§ 65 and 87 respectively).
53. The Court recalls that on the basis of the evidence collected in the present case, it has not found it proved to the required standard of proof that the applicant was forcibly evicted from his village following the destruction of his house or that he was denied access to his village by the State security forces or village guards as alleged (see paragraphs 46 and 47 above). That said, the Court reiterates that, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision is not a prerequisite for the application of the Article (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). However, having regard to its above findings on the applicant's substantive complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, the Court cannot conclude that the applicant has laid the basis of a prima facie case of misconduct on the part of the security forces. It refers in this connection to the applicant's failure to rebut the testimonies of the villagers or the conclusions reached in the investigation conducted by the domestic authorities into his complaints (see in this respect Matyar and Çaçan, both cited above, §§ 154 and 80 respectively).
54. In the light of the foregoing, the Court considers that the above mentioned situation cannot be regarded as a breach of the applicant's right to an effective remedy.
55. Accordingly, there has been no violation of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 3, 8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
56. The applicant maintained that, because of his Kurdish origin, he had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1. Article 14 provides as follows:
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
57. The applicant argued that the destruction of his house and possessions was the result of an official policy, which constituted discrimination due to his Kurdish origin.
58. The Government rejected the applicant's allegations.
59. The Court has examined the applicant's allegation in the light of the evidence submitted to it, but considers it unsubstantiated. There has therefore been no violation of Article 14 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses
the Government's preliminary objection;
2. Holds that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1;
3. Holds that there has been no violation of Article 13 of the Convention;
4. Holds that there has been no violation of Article 14 of the Convention, in conjunction with Articles 3, 8 and 13 of the Convention, and Article 1 of Protocol No. 1.
Done in English, and notified in writing
on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Registrar President