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,

Article of the Convention at issue: Article 1
Outcome: violation