CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 28 novembre 1997

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sB7201D33 { font-family:Arial; font-size:10pt; letter-spacing:-0.1pt }       CASE OF MENTEŞ AND OTHERS v. TURKEY   (58/1996/677/867)                       JUDGMENT   STRASBOURG     28 November 1997     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage) SUMMARY [1] Judgment delivered by a Grand Chamber Turkey – alleged burning of houses by security forces and lack of remedies in south-east Turkey I.   GOVERNMENT’S PRELIMINARY OBJECTION ( non-exhaustion of domestic remedies ) Preliminary objection resolved in light of principles enunciated in the Akdivar and Others judgment and of the security situation in south-east Turkey and ensuing obstacles to proper functioning of system of administration of justice in that region – despite extent of problem of village destruction, no example of compensation being awarded in respect of allegations that property purposely destroyed by members of security forces or of prosecutions being brought against them – general reluctance of the authorities to admit that this type of practice had occurred – unlike Akdivar and Others, present applicants had not themselves approached any domestic authority with their Convention grievances – however, the competent public prosecutors had failed to carry out any meaningful investigation after becoming aware of their allegations – insecurity and vulnerability of the applicants’ position following destruction of their homes also borne in mind – in the exceptional circumstances, not shown that remedies before administrative and civil courts were adequate and sufficient in respect of applicants’ complaint that their homes had been destroyed by security forces – this ruling not to be interpreted as a general statement that remedies are ineffective in this area of Turkey. Conclusion : objection dismissed (fifteen votes to six). II.   MERITS OF THE APPLICANTS’ COMPLAINTS A.   Establishment of the facts The Commission had reached its findings of fact on the basis of an investigation, in the course of which documentary evidence, including written statements, was submitted and oral evidence of eleven witnesses was taken by three delegates at hearings in Ankara – witnesses were questioned and cross-examined in detail by all sides and confronted with inconsistencies and weaknesses in their evidence – the delegates were thus in a position to observe the witnesses’ reactions and demeanour and, hence, to assess the veracity and probative value of the evidence of both sides – the establishment of the facts by the Commission had been based on the appropriate evidentiary requirement, namely proof beyond reasonable doubt – it had had regard to the inconsistencies and contradictions in the evidence, notably differences between the written and oral statements, and for reasons which appeared convincing, attached more weight to latter – also bore in mind cultural and linguistic context, as well as the Government’s uncooperative conduct – the Court, having itself carefully examined the evidence gathered by Commission, satisfied that facts as established by the latter were proved beyond reasonable doubt as far as concerned the first three applicants’ allegations, but not those of the fourth applicant. B.   Complaints of the first three applicants 1.   Article   8 of the Convention No reason to distinguish between the first applicant and the second and third applicants   – given her strong family connection and the nature of her residence, first applicant’s occupation of house fell within scope of Article   8 of the Convention – furthermore the facts established by Commission and which Court had accepted disclosed a particularly grave interference with the first three applicants’ right to respect for private life, family life and home, as guaranteed by Article   8 and that the measure was devoid of justification. Conclusion : violation (sixteen votes to five). 2.   Article   3 of the Convention In view of specific circumstances of case and finding of violation of Article   8, complaint not examined further. Conclusion : complaint not examined further (twenty votes to one). 3.   Article   5 §   1 of the Convention Complaint not pursued before the Court. Conclusion : not necessary to examine complaint (unanimously). 4.   Articles   6 §   1 and 13 of the Convention (a) Article   6 §   1 of the Convention Since applicants did not attempt to make an application before the courts, not possible to determine whether Turkish courts would have been able to adjudicate on their claims had they initiated proceedings – in any event, applicants complained essentially of lack of a proper investigation – therefore appropriate to examine this complaint in relation to general obligation under Article   13. Conclusion : not necessary to consider complaint (unanimously). (b) Article   13 of the Convention Although applicants had not approached any domestic authority before bringing their application to Strasbourg, manner in which investigations conducted, following the Commission’s communication of the application to the respondent Government, could be taken into account in examination of the applicants’ initial complaint that they did not dispose of an effective remedy – no thorough and effective investigation had been conducted into the applicants’ allegations and this had resulted in undermining the exercise of any remedies at their disposal, including the pursuit of compensation before the courts. Conclusion : violation (sixteen votes to five). 5.   Articles   14 and 18 of the Convention Complaints not sustained by facts as established by Commission. Conclusion : no violation (unanimously). 6.   Alleged administrative practice of violating the Convention Evidence established by Commission insufficient to allow conclusion as to the existence of any administrative practice of the violation of Articles 8 and 13. C.   Complaints of the fourth applicant Fourth applicant accepted before Court that no facts had been established with respect to her specific complaints under Articles 2, 3, 5, 6, 8, 13, 14 and 18. Conclusion : no violation (unanimously). III.   ARTICLE 50 OF THE CONVENTION A.   Damage Pecuniary and non-pecuniary damage: not ready for decision – question reserved (twenty votes to one). B.   Costs and expenses Costs and expenses: awarded in part (sixteen votes to five). COURT’S CASE-LAW REFERRED TO 18.1.1978, Ireland v. the United Kingdom; 16.9.1996, Akdivar and Others v. Turkey; 18.12.1996, Aksoy v. Turkey; 25.9.1997, Aydın v. Turkey   In the case of Menteş and Others v. Turkey [2] , The European Court of Human Rights, sitting in accordance with Rule   51 of Rules   of Court A [3] , as a Grand Chamber composed of the following judges: Mr   R. Ryssdal , President ,   Mr   R. Bernhardt ,   Mr   F. Gölcüklü ,   Mr   F. Matscher,   Mr   B. Walsh ,   Mr   C. Russo ,   Mr   A. Spielmann ,   Mr   J. De Meyer ,   Mr   N. Valticos ,   Mr   I. Foighel ,   Mr   R. Pekkanen ,   Mr   A.N. Loizou ,   Mr   J.M.   Morenilla ,   Mr   A.B. Baka ,   Mr   G. Mifsud Bonnici ,   Mr   D. Gotchev ,   Mr   P.   Jambrek ,   Mr   P.   Kūris ,   Mr   U. Lōhmus ,   Mr   E. Levits ,   Mr   V. Butkevych , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 21 March, 27 June and 22 October 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 17   April 1996, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no.   23186/94) against the Republic of Turkey lodged with the Commission under Article 25 by Ms Azize Menteş, Ms   Mahile Turhallı and Ms   Sulhiye Turhallı and Ms   Sariye Uvat, who are Turkish citizens, on 20   December 1993. The Commission’s request referred to Articles   44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article   46). The object 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   2, 3, 5, 6, 8, 13, 14 and   18 of the Convention. 2.     In response to the enquiry made in accordance with Rule   33 §   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). The President granted leave, pursuant to Rule   30 §   1, to Ms   F. Hampson, 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), and Mr   R.   Bernhardt, the Vice-President of the Court (Rule   21 §   4 (b)). On 27   April 1996, 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   F.   Matscher, Mr   B.   Walsh, Mr   N.   Valticos, Mr   R.   Pekkanen, Mr   J.M.   Morenilla, Mr   G. Mifsud Bonnici and Mr   P.   Kūris (Article   43 in fine of the Convention and Rule   21 §   5). 4.     As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 §   1 and 38). Pursuant to the orders made in consequence, the Registrar received the applicants’ memorial on 13   November 1996 and the Government’s memorial on 19   November 1996. On 10   January 1997, the Secretary to the Commission indicated that the Delegate would submit her observations at the hearing. 5.     On 20 June 1996 the President refused the applicants’ request under Rule   27 for interpretation in an unofficial language at the oral hearing, having regard to the fact that two of the applicants’ representatives used one of the official languages of the Court. 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22   January 1997. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)    for the Government Mr   A. Gündüz , Professor of International Law,       University of Marmara,   Agent , Mr   A. S. Akay , Ministry of Foreign Affairs, Mr   M.   Özmen , Ministry of Foreign Affairs, Ms   M.   Gülşen , Ministry of Foreign Affairs, Ms .   A. Emüler , Ministry of Foreign Affairs, Mr   A. Kaya , Ministry of Justice, Mr   A. Kurudal , Ministry of the Interior, Mr   O. Sever , Ministry of the Interior,   Advisers ; (b)   for the Commission Mrs   G.H. Thune ,   Delegate ; (c )   for the applicants Mr   K. Boyle , Barrister-at-Law,   Counsel , Ms   F. Hampson , University of Essex, Mr   O. Baydemir , Ms   A. Reidy , Mr   N. Stewart QC, Mr   K. Yildiz , Kurdish Human Rights Project,   Advisers .   The Court heard addresses by Mrs   Thune, Mr   Boyle, Mr   Gündüz and Mr   Özmen, and also their replies to questions put by some of its members. 7.     Following deliberations on 19   February 1997 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule   51 §   1). 8.     The Grand Chamber to be constituted included ex officio Mr   Ryssdal, the President of the Court, and Mr   Bernhardt, the Vice-President, togother with the other members and the four substitutes of the original Chamber, the latter being Mr   A.   Spielmann, Mr   P.   Jambrek, Mr   C.   Russo and Mr   I.   Foighel (Rule   51 §   2 (a) and (b)). On 28   January 1997, the President, in the presence of the Registrar, drew by lot the names of the seven additional judges needed to complete the Grand Chamber, namely Mr   J.   De   Meyer, Mr   A.N.   Loizou, Mr   A.B.   Baka, Mr   D.   Gotchev, Mr   U.   Lōhmus, Mr   E. Levits and Mr   V.   Butkevych (Rule 51   § 2 (c)). 9.     On 29 January and 11 February 1997 the Commission supplied a number of documents from its case file, including the verbatim record of the hearing of witnesses before the delegates in Ankara, which the Registrar had requested on the instructions of the President of the initial Chamber. 10.     Having taken note of the opinions of the Agent of the Government, the applicants’ representatives and the Delegate of the Commission, the Grand Chamber decided on 21 March 1997 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (Rule   38, taken together with Rule   51 §   6). AS TO THE FACTS I.   Particular circumstances of the case A.   Introduction 11.     The applicants, Ms   Azize Menteş, Ms   Mahile Turhallı and Ms   Sulhiye Turhallı and Ms   Sariye Uvat are Turkish citizens of Kurdish origin from the village of Sağgöz (which is the official Turkish name) or Riz (which is the older, Kurdish or Ottoman name) in the Genç district in the province of Bingöl in south-east Turkey. At present they live in Diyarbakır. 12.     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. At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. 13.     Sağgöz is situated in a mountainous area which was subject to significant PKK terrorist activity. Due to the events in the region in 1993 and   1994, many of the villages in the district have been evacuated by the villagers and the houses destroyed. By the summer of 1994, the village of Sağgöz and its surrounding hamlets were deserted, the villagers having left for Diyarbakır, Genç and other places, and the houses ruined. 14.     The Sağgöz village was evacuated as a whole by the villagers in or about October 1993, following pressure from the PKK in the area. Some of the villagers in the outer hamlets stayed beyond October   1993 but had all left by summer   1994 due to PKK presence. Shortly after the villagers began leaving, the PKK moved into the empty houses. Clashes with security forces ensued, one in October or November   1993, another in April/May   1994. It is probable that houses in the village were burned or destroyed in the course of these clashes, including possibly through bombing from helicopters. However, whether the PKK or the security forces set fire to the houses intentionally or accidentally is not established. 15.     The facts in this case are disputed. B.     The applicants’ version of the facts 16.     According to the applicants their houses were burned in the course of an operation by the security forces in June   1993. Their version of the events could be summarised as follows. 17.     The applicants all lived in hamlets of the village of Sağgöz. Azize   Menteş, Mahile Turhallı and Sulhiye Turhallı lived in the lower neighbourhood in Sağgöz village and Sariye Uvat lived in Piroz, a separate hamlet of the village. 18.     On 23   June 1993, an attack was carried out by the PKK on Üçdamlar gendarme station. On the evening of the same day, the security forces stopped a minibus belonging to Naif Akgül, which regularly took people between Diyarbakır and the Lice area, as it approached the gendarme station. The security forces set fire to the minibus. They subsequently carried out a follow ‑ up operation in pursuit of the PKK who had attacked the station. On 24   June 1993, security forces came to Pecar (Güldiken) village and burned some of the houses. 19.     On the evening of 24   June 1993, security forces arrived in the area surrounding Sağgöz village by helicopter. On the morning of 25   June   1993, gendarmes entered the village and gathered people from the upper neighbourhood in the area in front of the school. Gendarmes in the lower area carried out a search and then proceeded to burn houses in the lower neighbourhood of Sağgöz village. Villagers pleaded with the gendarmes not to burn their houses but were told to remain quiet or they would be thrown on the flames. When asked why they were burning the houses, the gendarmes told the villagers that it was a punishment for helping the PKK. 20.     The house where Azize Menteş lived was burned completely, along with her furniture, firewood, barn and a shed with winter feed for the animals. Mahile Turhallı’s house was burned and the gendarmes threatened to throw her into the burning house if she tried to retrieve some of her children’s clothes. Sulhiye Turhallı’s house was burned, after she and her children had been thrown out and she had been kicked, cursed at and a gun put to her face. In all, ten to thirteen houses in the lower neighbourhood were destroyed. The soldiers told the applicants that they were burning their houses because they helped the terrorists. 21.     The intention of the gendarmes in Sağgöz village appeared to have been to burn the whole village in revenge for the attack by the PKK on the gendarme station. However, the arrival of a commanding officer at midday, a colonel who ordered the burning to stop, saved the upper village. The house of the applicant Sariye Uvat in the hamlet of Piroz was burned by the security forces in a separate incident. The applicants were forced to leave Sağgöz. 22.     Later, in the autumn of 1993, the remaining population of the village left and in March   1994 the remainder of the village was burned down. By this date in 1994, the entire area seems to have been burned, devastated and depopulated. 23.     The burning of the applicants’ homes is consistent with a practice of burning houses as part of the policy by the security forces to combat the PKK, especially where the authorities view villages as giving support to the PKK. C.   The Government’s version of the facts 24.     Since 1983 the PKK has sought to use the applicants’ village as a place of shelter and supply base. The villagers were forced by virtue of the incursions of the terrorists to leave the village. The terrorists used the houses from time to time and when the security forces took action against them, the terrorists fled setting the houses on fire. 25.     There were no operations by the security forces in the area on 25   June 1993. In fact, the applicants had been absent from the village for six to seven years by that point. They were the close relatives of six named individuals who are suspected of being members of the mountains branch of the PKK. They also had relatives who had been detained on charges alleging, inter alia , that they have aided and abetted the PKK terrorist organisation. Other members of the applicants’ families were working for the PKK in rural areas. It was not unlikely that the applicants had been subjected to pressure by their relatives who aid and abet and work for the PKK. D.   The Commission’s findings of fact 26.     The Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements, and oral evidence of eleven witnesses taken by three delegates of the Commission in Ankara from 10 to 12   July 1995. This included two local public prosecutors and four villagers whom they had investigated in connection with the applicants’ allegations (see paragraphs 27–30 below); another villager; the first three applicants; and the commander of the gendarmerie of the Bingöl province who had taken up his duties after the alleged events. In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in some cases via Kurdish and Turkish into English). It therefore paid careful attention to the meaning and significance which should be attributed to the statements of witnesses appearing before its delegates. In respect of both written and oral evidence, the Commission was aware that the cultural context of the applicants and the witnesses made it inevitable that dates and other details lacked precision (in particular, numerical matters) and did not consider that this by itself impinged on the credibility of the testimony. It assessed the evidence and its findings could be summarised as follows. 1.   Investigations at domestic level 27.     Two investigations into the events at Sağgöz had been carried out by the two public prosecutors at Genç, the first by Mr Ata Köycü and the second by Mr   Kadir Karaca, both of which had ended in decisions, on 25   April and 30   May 1994 respectively, not to prosecute. 28.     The first investigation had been in response to a letter from the Ministry of Justice, apparently motivated by information received when the applicants’ complaints had been communicated by the Commission to the Turkish Government on 15   April 1994 (date of letter). In reconstructing the investigation, the Commission’s delegates had received little assistance from the public prosecutor who had also been handicapped in not having a copy of his file for reference. His decision not to prosecute, which concluded that no incident had occurred on 25   June 1993, must have been taken less than two weeks from his receipt of the first notification of the complaints. It seemed likely that the applicants’ names were not known to him at that stage. This decision had been taken solely on the basis of brief statements from four villagers, from different hamlets, distinct from Sağgöz, which appeared mainly directed at refuting specific allegations: the bombing by helicopters in June   1993 (not in fact alleged in the applicants’ original application) and the tying up or beating of the old men. All had referred to terrorist clashes with security forces leading to the villagers’ departure from Sağgöz; only one had attributed the burning of houses to the PKK. According to Mr Karaca, the witnesses had been selected at random, but Ekrem Yarar, muhtar of Sağgöz, had said that he had been invited to make a statement and to bring other “reliable witnesses” from the village. 29.     Also the second investigation had been in response to another letter from the Ministry of Justice. Mr Karaca had based himself on the investigation of his colleague. He referred to the previous four statements and summoned the four villagers concerned. His decision not to prosecute concluded that the PKK burned the houses in the village, that the alleged incident had not taken place in June   1993 and that the applicants were close relatives of members of the PKK. 30.     No other steps were taken to establish the facts of what occurred, either by enquiring from the gendarmes as to whether any operation might have taken place or by seeking to question villagers from the upper or lower neighbourhoods of Sağgöz itself. Further, it appeared that, while the names of the applicants were known at the time of the second investigation, no attempt had been made either to find out their addresses or to contact them with a view to inviting them to provide statements as to the factual circumstances of the case. The addresses of the applicants were in fact known to the authorities in Ankara who had been in contact with the police in Diyarbakır. Concerning the alleged events of 25   June 1993 31.     The Commission observed that there had been no detailed investigation at the domestic level of the events in Sağgöz village and its surrounding hamlets over the period June 1993 to summer 1994. It had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings. It further noted that the Government, despite repeated requests by the Commission’s Secretariat and the Commission’s delegates, had failed to provide documentary materials, in particular the contents of the investigation files of the two public prosecutors who carried out investigations into the alleged incident in Sağgöz village. At the taking of evidence in July 1995, the Government had failed to identify and serve with the Commission’s summons the gendarme commander for the area on 25 June 1993, his successor, Mr Tuna, appearing instead. No explanation had been forthcoming for this. In this respect, the Commission had had regard to the principle that, in assessing the evidence in a case the conduct of the parties may be taken into account (see the Ireland v. the United Kingdom judgment of 18   January 1978, Series   A no.   25, p.   65, §   161 in fine ). 32.     The Commission was not persuaded by the Government’s suggestion that the applicants’ complaints were fabrications resulting from pressure exerted by their relatives in the PKK. The Commission found it regrettable that the response from the domestic authorities and the Government’s allegations made in this case had given the appearance of being directed more at emphasising the PKK links with the applicants’ families than at dealing with the substance of the applicants’ grievances. 33.     In establishing the facts, the Commission had regard to the inconsistencies and contradictions in the evidence. As to the evidence given by the four villagers to the public prosecutors, the Commission observed that its tenor had been dogmatic, including blanket denials of any alleged cruelty or burning ever having been committed by Turkish soldiers. It had also given some support to the applicants’ allegation that there was a certain animosity between the other villagers and themselves, which might have encouraged them to give statements contradicting the applicants’ account. Moreover, the Commission noted that the village muhtar had been instructed by the prosecutor to bring some “reliable witnesses”. In view of the manner of selection of witnesses by the prosecutor, the Commission found it unsafe to rely on their written statements in so far as they were unsupported by other evidence. The Commission further noted that there were material differences between the statements of the first three applicants, Ms   Azize Menteş, Ms   Mahile Turhallı and Ms   Sulhiye Turhallı, as recorded by the Human Rights Association and their oral statements to the delegates. However, the Commission found that the three applicants’ oral evidence, which was supported in material points by a villager – Ms   Aysel Gündoğan – was on the whole consistent and credible. The fact that they had gone to the Human Rights Association in Diyarbakır to complain in July 1993 was a strong factor weighing heavily in favour of the credibility of their central complaint. On the other hand, the Commission considered that it could not rely on the written statements since it had serious doubts as to the manner in which the association took statements and the extent to which care had been taken to record accurately each individual complaint without contamination from information gathered elsewhere. 34.     The Commission was satisfied that Sulhiye and Mahile Turhallı were still living in their houses in the lower neighbourhood of the village of Sağgöz in the summer of 1993 and were present on 25   June 1993. However, as appeared to be a not uncommon pattern of life in this region, these two applicants left the village in the winter for Diyarbakır and returned in the summer to tend to their gardens and crops. As regards Azize Menteş, while she probably did not own a house herself, she lived in the house of her father ‑ in-law when she returned in the summer months to the village. The Commission found that on the balance of the evidence, she was also living in the lower neighbourhood on 25   June 1993. As regards the events in Sağgöz the Commission accepted in its principal elements the oral evidence of Azize Menteş, Mahile Turhallı and Sulhiye   Turhallı. Considering that their oral evidence was more consistent, more credible and more convincing than the evidence given by the four villagers, it found as follows. On the evening of 24   June 1993, a large force of gendarmes had arrived in the vicinity of Sağgöz village. On 25   June 1993, the gendarmes had entered both upper and lower neighbourhoods and carried out searches. At some point, the villagers in the upper neighbourhood (with the exception of the younger men who were out working) had been gathered in front of the school, probably to be questioned about the PKK in the area. In the lower neighbourhood, the women, including the applicants, had been required by the soldiers to leave their houses and their houses had been set on fire, with all their belongings and property inside, including the clothing and footwear of children. The burning had been restricted to the lower neighbourhood. Around midday, a helicopter had arrived in the village in the upper neighbourhood, probably bringing a senior officer, a colonel, and his arrival had been associated by the applicants and some of the other villagers with an order to cease the burning. The gendarmes left that day. Shortly afterwards, the three applicants, with their children or other members of their family, had to walk for up to ten hours to the Lice-Diyarbakır road from where they were given rides in vehicles into Diyarbakır. 35.     As to the alleged operation by security forces in which the house of the fourth applicant, Sariye Uvat, was burned along with others in the hamlet of Piroz, no facts have been established in relation to this applicant’s complaints. Due to ill-health she did not appear at the hearings before the Commission delegates, unlike the first three applicants. II.   Relevant domestic law and practice A.   Administrative liability 36.     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.” 37.     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. 38.     The principle of administrative liability is reflected in the additional section   1 of Law no.   2935 of   25 October 19