A.S. AND S.S. v. TURKEY
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicants are Turkish nationals, born in 1946 and 1939 respectively, and living in Yrecik village of Mu. They are represented before the Court by Mr Selahattin Kaya, a lawyer practising in Ankara. A. On 14 October 1993 security forces burnt down the applicants’ houses along with all the other houses in Yrecik village in the province of Mu, in south-east Turkey. The village was subsequently evacuated. The applicants did not apply to the competent authorities for compensation for their losses as they were intimidated by the security forces in the region. On 13 October 1997 the applicant Abdulhalık Sakık filed a petition with the Mu Governor’s office. He stated the following: “In 1993 my house in Yrecik village of our province was burnt down. I would request you to give me a written document from the archives of the state of emergency office or from other institutions which confirms that my house was burnt down.” The applicant has not received any reply to his petition. B. Relevant domestic law and practice 1. Administrative liability 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.” 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. The principle of administrative liability is reflected in the additional section 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.” 2. Criminal responsibility The Turkish Criminal Code makes it a criminal offence: (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), (b) to oblige an individual through force or threats to commit or not to commit an act (Article 188), (c) to issue threats (Article 191), (d) to make an unlawful search of an individual’s home (Articles 193 and 194), (e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382), (f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or (g) to damage another’s property intentionally (Articles 526 et seq.). 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. 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 Procedure of Military Courts). 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; a refusal to prosecute is subject to an automatic appeal of this kind. 3. Provisions on compensation 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. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.