CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 avril 1998

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font-size:12pt } .s801C94DA { width:46.51pt; text-indent:0pt; display:inline-block } .s892A53F7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:12pt; text-align:justify; font-size:12pt } .s63EB1168 { margin-top:12pt; margin-bottom:0pt; text-align:right; font-size:12pt } .sF1D05512 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:14pt } .s63B44408 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:12pt } .sC202EACC { clear:both; mso-break-type:section-break } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF SELÇUK AND ASKER v. TURKEY   (12/1997/796/998-999)                       JUDGMENT   STRASBOURG     24 April 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998 . 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 Chamber Turkey – alleged burning of houses by security forces in south-east Turkey I.   ESTABLISHMENT OF THE FACTS Court, in line with constant case-law, accepts facts as found by Commission – established that security forces responsible for burning of applicants’ property. II.   GOVERNMENT’S PRELIMINARY OBJECTIONS A.   Non-validity of applications No cause to doubt applications to Commission were valid and genuine. Conclusion : objection dismissed (unanimously).   B.   Non-exhaustion of domestic remedies Existence of effective and accessible domestic remedies for complaints such as applicants’ not demonstrated with sufficient certainty – although second applicant presented petition of complaint to District Governor, no investigation opened until communication of applications by Commission to Government – special circumstances existed which dispensed applicants from obligation to exhaust domestic remedies. Conclusion : objection dismissed (eight votes to one). III. MERITS A.   Article 3 of the Convention In view of manner in which applicants’ homes destroyed and their personal circumstances, they must have been caused suffering of sufficient severity for acts of security forces to be categorised as inhuman treatment. Conclusion : violation (eight votes to one). B.   Articles 2 and 5 § 1 of the Convention Claims not pursued. Conclusion : not necessary to examine (unanimously). C.   Article 8 of the Convention and Article 1 of Protocol No. 1 No doubt that burning of property constituted grave and unjustified interference with rights under these provisions. Conclusion : violation (eight votes to one). D.   Articles 6 § 1 and 13 of the Convention Given nature of complaint, and in line with case-law, not necessary to determine whether there has been violation of Article 6 § 1. Respondent State had not carried out thorough and effective investigation into applicants’ allegations, as required by Article 13. Conclusion : not necessary to examine complaint under Article 6 § 1 (unanimously); violation of Article 13 (eight votes to one).   E.   Articles 14 and 18 of the Convention Acceptance of Commission’s findings that allegations unsubstantiated. Conclusion : no violation (unanimously). IV. ARTICLE 50 OF THE CONVENTION A.   Damage Pecuniary damage: claim allowed in part. Non-pecuniary damage: claim allowed in part. B.   Costs and expenses Claim allowed in full. Conclusion : respondent State to pay specified sums to applicants (eight votes to one).   COURT’S CASE-LAW REFERRED TO 7.7.1989, Soering v. the United Kingdom; 16.9.1996, Akdivar and Others v. Turkey; 18.12.1996, Aksoy v. Turkey; 26.11.1997, Sakık and Others v. Turkey; 28.11.1997, Menteş   and Others v. Turkey; 1.4.1998, Akdivar and Others v. Turkey ( Article   50 ) In the case of Selçuk and Asker v. Turkey [2] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules   of Court A [3] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   F. Gölcüklü ,   Mr   A.N. Loizou ,   Sir   J ohn Freeland,   Mr   G. Mifsud Bonnici ,   Mr   J. Makarczyk ,   Mr   P.   Jambrek ,   Mr   U. Lōhmus ,   Mr   E. Levits , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 2 February and 28 March 1998, 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 22 January 1997, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention. It originated in two applications (nos.   23184/94 and 23185/94) against the Republic of Turkey lodged with the Commission under Article   25 on 15   December 1993 by two Turkish citizens, Mrs   Keje Selçuk and Mr   İsmet   Asker. 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 and Article   1 of Protocol No.   1. 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). 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. Ryssdal, the President of the Court (Rule   21 §   4 (b)). On 21   February 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr   R. Macdonald, Mr   A.N. Loizou, Mr   G. Mifsud Bonnici, Mr   J. Makarczyk, Mr   P.   Jambrek, Mr   U. Lōhmus and Mr   E. Levits (Article   43 in fine of the Convention and Rule   21 §   5). 4.     As President of the Chamber (Rule   21 §   6), Mr   Ryssdal, acting through the Registrar, consulted the Agent of the Government of Turkey (“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 and to the Government’s request for a postponement of the hearing and the Government’s and applicants’ requests for extensions of the time-limit for the filing of memorials, the Registrar received the Government’s and the applicants’ memorials on 28 October 1997. On 13 November 1997 the Commission produced certain documents from the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 5.     Subsequently Mr   R. Bernhardt replaced as President of the Chamber Mr   Ryssdal, who was unable to take part in the further consideration of the case (Rule   21 §§   4 (b) and 6). 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26 January 1998. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)   for the Government Mr   M.   Özmen,   co-Agent , Mr   A. Kaya, Mr   K. Alataş, Miss A. Emüler, Mr   F. Polat, Miss M.   Anayaroğlu,   Advisers ; (b)   for the Commission Mr   N. Bratza,   Delegate ;   (c)   for the applicants Ms   F. Hampson, Barrister-at-Law, Ms   A. Reidy, Barrister-at-Law,   Counsel , Mr   O. Baydemir, Lawyer, Mr   K. Yıldız, Kurdish Human Rights Project,   Advisers . The Court heard addresses by Mr   Bratza, Ms   Reidy and Mr   Özmen. 7.     Subsequently Sir   John Freeland, substitute judge, replaced as a full member of the Chamber Mr   Macdonald, who was unable to take part in the further consideration of the case (Rule   22 §   1). AS TO THE FACTS I.   THE circumstances of the case A.   Introduction   8.     The first applicant, Mrs   Keje Selçuk, was born in 1939. She is a widow and the mother of five children. The second applicant, Mr   İsmet Asker, was born in 1933. He is married to Mrs   Fatma Asker and has seven children. Until June 1993 both applicants, who are Turkish citizens of Kurdish origin, lived in the village of İslamköy, but they have since moved to Diyarbakır. 9.     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 most recent figures provided by 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. 10.     İslamköy, a scattered community of about 150 households, is situated in a mountainous region in the Kulp district, in the province of Diyarbakır in south-east Turkey, within the state of emergency region and near to a road that was used by members of the PKK. The facts in this case are disputed. B.     The applicants’ version of the facts 11.     The applicants complain that soldiers from Kulp, under the command of Recep Cömert, the Commanding Officer of the Kulp gendarmerie (“CO”), deliberately burned their homes in İslamköy on 16   June 1993 and, ten days later, returned to burn the mill partly owned by Mrs   Selçuk. 12.     They state that, some months earlier, the villagers had been warned by security forces that certain of their houses would be destroyed, on the grounds that they were allegedly used by the PKK, if the villagers did not leave İslamköy, although they subsequently came to believe that this threat had been retracted. 13.     Nonetheless, according to the applicants, on the morning of 16   June   1993 a large number of soldiers came to İslamköy, under the command of CO   Cömert, whom they knew as “Recep” because he had come to the village on a number of previous occasions. The soldiers went first to the house of Mr   and Mrs   Asker, which they forcibly entered and searched, telling the Askers to remove their possessions. However, while the latter were inside, trying to save their furniture and belongings, they realised that the soldiers had set fire to the house. Mr   Asker told the Commission’s delegates (see paragraph   26 below) that, had he and his wife not been able to escape through a door to the barn at the back of the house, they would have been asphyxiated. Villagers who attempted to extinguish the fire were prevented from doing so by the soldiers. The house, barn and all of Mr   Asker’s property, including his food stocks and poplar trees, were destroyed. 14.     The security forces then went to Mrs   Selçuk’s house. They ejected her and some neighbours’ children who were staying with her, poured petrol on the house and set fire to it. Villagers were again prevented from assisting and CO Cömert pushed Mrs   Selçuk, leading her to understand that she should leave the village. She stayed that night in a neighbour’s house in İslamköy and the following day went to live with her daughter in Diyarbakır. 15.     Approximately ten days later, on or about 25 June 1993, the soldiers returned to the village and burned down the mill co-owned by Mrs   Selçuk and three others. Three other houses were set on fire in the village, two of them destroyed. Mrs   Selçuk’s brother-in-law, Mr   Nesih Selçuk, telephoned her in Diyarbakır with the news. 16.     Mr   and Mrs   Asker left İslamköy on or about 25 June 1993; they saw the smoke from the fires as they were leaving. They went initially to Kulp, where Mr   Asker lodged a petition with the District Governor, setting out the losses caused by the security forces and naming “Recep” as the commanding officer. The District Governor apparently accepted the petition and referred it to the police, but Mr   Asker never received a response to it. The headman ( muhtar ) of İslamköy at the time, Mr   Sait Memiş, also allegedly informed the District Governor approximately ten days after the incident that the houses had been burnt, although he attributed the burning to the PKK. C.   The Government’s version of the facts 17.     In his evidence to the Commission’s delegates (see paragraph   26 below), CO Cömert explained that he had been stationed as commander of the Central Kulp gendarmerie between 15 July 1991 and 3   August 1993. He had visited İslamköy on three occasions and knew Mr   Asker and most of the other inhabitants. He did not, however, visit the village during the month of June 1993 and he had received no reports of any houses being burnt there at that time. When asked why he thought the applicants had named him, he told the delegates that untrue allegations of this type had been made against him in the past in newspapers and a book. 18.     The Government contended that the applicants’ complaints were concocted by others and that they were acting under the influence of the PKK and/or with a view to obtaining money. They submitted that the applicants’ homes and possessions were destroyed by the PKK, which purported to replace the State in the region, as a punishment and a warning, since the villagers generally had good relations with the security forces. The two applicants in particular were law-abiding citizens with no history of anti-governmental activity. At the time of the events in question, Mr   Asker’s son was doing his military service, an activity which the PKK urged the people in the region to avoid, and Mrs   Selçuk had one son in the army and another in the civil service. 19.     The Government questioned whether Mrs   Selçuk’s mill was burned at all, but if it was, denied that this was done by security forces. 20.     They further disputed that Mr   Asker lodged any petition with the Kulp District Governor, since he could not produce any acknowledgment of receipt and no such petition was registered in the records. D.   Proceedings before the domestic authorities 21.     Following the communication of the applications by the Commission to the Government on 15 April 1994, it appears that the Ministry of Justice (International Law and External Relations General Directorate) contacted the Principal Public Prosecutor’s office in Diyarbakır, which in turn wrote to the Public Prosecutor’s office in Kulp on 4 May 1994, enquiring whether the applicants had made any complaint and requesting that an investigation be initiated if they had not. 22.     Since no petitions from the applicants could be traced, the Kulp public prosecutor opened investigation file 1994/57. On 11 May 1994, he requested the Kulp gendarmerie to ascertain the applicants’ whereabouts and to invite them to come and see him as soon as possible and on 18 May 1994 he wrote to the District Governor asking whether any petition had been filed by Mr   Asker. By letter dated 26 May 1994, Gendarme Captain   Ali Ergulmez replied, on behalf of the District Governor, that an examination of the records disclosed that no complaint had been filed by Mr   Asker. 23.     Mr   Asker made a statement to the public prosecutor on 20 June 1994 and Mrs   Selçuk made one on 21 June 1994. 24.     On 18 August 1994, the public prosecutor sent a request to the district gendarmerie commander for information to be given promptly as to whether an operation led by CO Cömert had been carried out at İslamköy on 16 June 1993 and whether the applicants’ houses had been burned by those units. No reply to this enquiry was included with the documents from the investigation file provided to the Commission. Similarly, it appeared from that file that no statements were taken from the alleged perpetrators of the burning or from other villagers who might have witnessed events. 25.     On 30 November 1994, the public prosecutor, Mr   Erdal Yatmis, issued a decision of non-jurisdiction, stating that the matter concerned allegations of damage to property occurring in the winter months of 1993 during an intensive clash between the security forces and the PKK, and that since the security forces were involved in the course of their administrative duties, jurisdiction lay with the Administrative Council (see paragraph   44 below). Pursuant to this decision, the file was transferred to the Kulp District Governor on 30 November 1995. E.     The Commission’s findings of fact 26.     The Commission conducted an investigation with the assistance of the parties and accepted documentary evidence, including written witness statements and copies of the duty log of Kulp gendarmerie for the periods in question. Three delegates of the Commission heard the oral evidence of ten witnesses, including the applicants, Mr   Asker’s wife and Mrs   Selçuk’s brother-in-law, and five other former inhabitants of İslamköy or its neighbouring hamlets (Necmettin Korkmaz, Tevfik Karaaslan, Sait Memiş, Celal Şeker and Şah Şimşek), and CO Cömert, in Ankara in February 1996. Four of the witnesses whose presence had been requested failed to attend the hearings, including the public prosecutors from Lice and Kulp (see paragraph   25 above). In addition, despite repeated requests from the Commission’s secretariat and delegates, the Government failed to provide the complete set of records relating to the activities of the security forces in the Kulp district in June 1993. In relation to the oral evidence, the Commission was 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 (in particular, numerical details) lacked precision and did not consider that this by itself impinged upon the credibility of the testimony. The Commission’s findings of fact can be summarised as follows. 27.     Early in the morning of 16 June 1993, a large force of gendarmes arrived in the village of İslamköy. A number of them, under the apparent command of CO Cömert, went to Mr   Asker’s house. The house was set on fire, causing the destruction of the property and most of its contents. Mr   and Mrs   Asker ran inside the house in an attempt to save their possessions: this occurred either while the gendarmes were setting fire to the house by pouring petrol onto it, or just before; it was not established that the house was set on fire while the Askers were inside. Villagers came to see what was happening and were prevented from trying to put out the fire. 28.     A number of gendarmes, including CO Cömert, then proceeded to Mrs   Selçuk’s house. Despite her protests, petrol was poured on her house, which was set on fire, by, or under the orders of, CO Cömert. Villagers, including two of those who gave evidence to the Commission’s delegates, were prevented from putting out the fire. Mrs   Selçuk’s house and its contents were completely destroyed. 29.     Mr   and Mrs   Asker left the village briefly and returned about ten days later. Mrs   Selçuk spent the night or several nights in the village and then left to stay in Diyarbakır with her daughter. 30.     On or about 26 June 1993, a force of gendarmes arrived in İslamköy; they were seen on the road nearby and in the village itself. The mill belonging to Mrs   Selçuk and others, which stood on a creek in İslamköy, was set on fire and destroyed. CO Cömert was seen with the gendarmes at the mill when this occurred. 31.     Mr   Asker complained about the destruction of his home to the District Governor in Kulp, presenting a petition. No steps were taken in response to this. 32.     Following these events, Mrs   Selçuk and Mr   and Mrs   Asker moved to live permanently in Diyarbakır. İslamköy was abandoned completely by the end of 1994 due to increased PKK activity. II.   Relevant domestic law and practice A.   Administrative liability 33.     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.” 34.     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. 35.     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.” B.     Criminal responsibility 36.     The Turkish Criminal Code makes it a criminal offence: – to deprive an individual unlawfully of his or her liberty (Article   179 generally, Article   181 in respect of civil servants), – to oblige an individual 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 an individual’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.). 37.     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. 38.     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). 39.     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. C.   Provisions on compensation 40.     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. 41.     Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 42.     Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. D.   Provisions on emergency measures 43.     Extensive powers have been granted to the regional governor of the state of emergency by decrees enacted under Law no.   2935 on the State of Emergency (25 October 1983), especially Decree no.   285, as amended by Decrees nos.   424 and 425, and Decree no.   430. 44.     Decree no.   285 modifies the application of Law no.   3713 of 1981 on the prevention of terrorism, 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. 45.     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.” According to 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 46.     In their applications (nos.   23184/94 and 23185/94) to the Commission introduced on 15   December 1993, the applicants, relying on Articles   3, 5, 6, 8, 13, 14 and   18 of the Convention and Article   1 of Protocol   No.   1, complained that their homes had been burnt by State security forces on or about 16   June 1993 and that they had therefore been forced to leave their village. The first applicant also complained that a mill partly owned by her was destroyed by security forces on or about 26   June   1993. The second applicant claimed in addition that his life had been endangered during the attack on his house, in violation of Article   2 of the Convention. 47.     The Commission declared Mrs   Selçuk’s application admissible on 3   April   1995 and that of Mr   Asker admissible on 28   November 1994. It joined the two applications on 8 March 1996. In its report of 28   November   1996 (Article   31), it expressed the following opinion: (a)   that there had been a violation of Article   8 of the Convention (unanimously); (b)   that there had been a violation of Article   1 of Protocol No.   1 (unanimously); (c)   that there had been a violation of Article   3 of the Convention (by twenty-seven votes to one); (d)   that there had been no violation of Article   2 in respect of the second applicant (unanimously); (e)   that there had been no violation of Article   5 § 1 (unanimously); (f)   that there had been a violation of Article   6 §   1 (by twenty-six votes to two); (g)   that there had been a violation of Article   13 (by twenty-six votes to two); (h)   that there had been no violation of Article   14 (unanimously); (i)   that there had been no violation of Article   18 (unanimously). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [4] . FINAL SUBMISSIONS TO THE COURT 48.     The Government, in their memorial, and at the hearing, asked the Court to find that the applications should have been declared inadmissible on the grounds that they were not validly brought and that domestic remedies had not been exhausted, or, in the alternative, that there had been no violation of the Convention in the present case since the evidence heard by the delegation of the Commission had not substantiated the applicants’ allegations. 49.     The applicants, for their part, asked the Court to find violations of Articles   3, 6, 8, 13, 14 and 18 of the Convention and Article   1 of Protocol   No.   1, and to award them just satisfaction under Article   50 of the Convention. AS TO THE LAW I.   establishment of the facts 50.     The Government challenged the Commission’s findings of fact, particularly its assessment of the evidence heard by its delegates in Ankara (see paragraph   26 above). In their submission, since Mr   Asker and his wife and Mrs   Selçuk and her brother-in-law not only stood to profit from any compensation awarded by the Court but also feared reprisals from the PKK, their testimony should be treated with great scepticism. They pointed out that the only witnesses who had no material interest in the case were Mr   Korkmaz, Mr   Karaaslan, Mr   Memiş, Mr   Şeker and Mr   Şimşek. All of these, except Mr   Korkmaz, whose testimony was full of contradictions and appeared unreliable, told the delegates that the applicants’ houses had been destroyed by the PKK and not by the State as claimed by the applicants. The Government further pointed out that the duty log of the Kulp gendarmerie for the dates in question, which they had given to the Commission, did not indicate any visits by gendarmes to the village. 51.     The applicants submitted that the Government had been highly selective in the manner in which they had identified inconsistencies in the evidence given by the applicants and their witnesses. They reminded the Court that none of the four villagers who gave evidence that the PKK had burned down the houses had actually been in the village at the time of the events in question. Moreover, their testimony was inconsistent in other respects with that of the Government’s fifth witness, CO Cömert. 52 .     At the hearing, the Delegate emphasised that the Commission had addressed in its report all the evidential issues raised by the Government and, after a careful and detailed assessment, had come to the conclusion that the various facts found by it had been proved beyond reasonable doubt. 53.     The Court reiterates that under its case-law the establishment and verification of the facts are primarily a matter for the Commission (Articles   28 §   1 and 31 of the Convention). While the Court is not bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area. Such exceptional circumstances may arise in particular if the Court, following a careful examination of the evidence on which the Commission has based its conclusions, finds that the facts have not been proved beyond reasonable doubt (see the Menteş and Others v. Turkey judgment of 28 November 1997, Reports of Judgments and Decisions 1997-VIII, pp.   2709–10, §   66). 54.     The Court has examined the findings in the Commission’s report and the evidence on which the latter based its conclusions, principally the transcripts of the hearings in Ankara (see paragraph   26 above), with a view to determining whether any such exceptional circumstances arise in the present case. 55.     In this connection, it considers it to be of particular significance that the Commission’s delegates had the opportunity to see and hear the applicants and other witnesses give their testimony and answer questions put by the delegates themselves and by lawyers for the Government and the applicants. It notes that the Commission found the applicants’ demeanour and comportment to be convincing and sincere (see the report of the Commission, paragraph   149). The Court is, moreover, satisfied that the Commission, in assessing the evidence, took due account of the difficulties inherent in its task, such as the barriers created by differences in language and culture and the absence of possibly important testimony and evidence (see paragraph   26 above). 56.     The Court has had regard to the Government’s allegations of inconsistencies and contradictions in the testimonies of the applicants and their witnesses. It notes that the Commission in its report addressed in turn each of the Government’s concerns (see paragraphs   150–66 of the Commission’s report). Having itself examined the evidence in the case, it finds the Commission’s assessment and conclusions to be reasonable and credible, particularly bearing in mind that, as mentioned above, the delegates had the advantage of hearing the oral testimony first-hand. 57.     In the light of all the foregoing, the Court accepts the facts established by the Commission (see paragraphs   27–32 above), which it finds to have been proved beyond reasonable doubt. II.   the Government’s Preliminary Objections A.   Non-validity of the applications 58.     The Government contended that the applications to the Commission had not been brought freely and genuinely by Mrs   Selçuk and Mr   Asker, but instead by others for political motives. In support, they referred to the facts, inter alia , that Mrs   Selçuk had told the Commission’s delegates that she did not go to the Human Rights Association in Diyarbakır (“HRA”) to file a complaint, but only to get help, and that she did not recognise the name of the lawyer there who had supposedly taken her statement. Similar problems arose in relation to Mr   Asker’s statement for the HRA. 59.     The applicants’ representative observed that both of her clients had signed valid powers of attorney and had fully participated in the Strasbourg proceedings, including appearing before the Commission’s delegates to be cross-examined on their complaints. 60.     The Commission found that the applications were valid and genuine, notwithstanding the discrepancies and apparent inaccuracies in the written petitions submitted by the HRA, in view of the fact that the applicants maintained the substance of their complaints before the delegates and showed no unwillingness or reluctance in participating in the proceedings before it. 61.     The Court notes the above finding of the Commission and observes, furthermore, that both applicants signed forms indicating that they wished to take part in the proceedings before the Court and appointing the lawyers who would represent them. In these circumstances, it finds no cause to doubt that the applications to the Commission were valid and genuine expressions of the right of individual petition under Article   25 of the Convention. It therefore dismisses this preliminary objection. B.     Non-exhaustion of domestic remedies 62.     The Government contended that, despite Mr   Asker’s claims, he could not have made any petition to the District Governor because, had he done so, his petition would have been recorded and he would have been provided with a registry number and an acknowledgment of receipt, neither of which he had been able to produce. In truth, neither of the applicants had made any attempt to raise their Convention grievances before a domestic authority, despite the fact that both civil and criminal-law remedies were available. There were numerous decided cases to the effect that the State would be held liable for compensation where its agents had destroyed property. The Government cited by way of example the case of Nizamettin Ağırtmış, who was awarded compensation by the Van   Administrative Court following the burning of his abandoned house by soldiers (decision no.   1996/771 on file no.   1993/427, 27 December 1996). It followed that the applicants had not done all that could be expected of them to exhaust domestic remedies as required by Article   26 of the Convention. 63.     The applicants contended that both Mr   Asker and Mr   Memiş had informed the District Governor approximately ten days after the houses had been burned down (see paragraph   16 above). Since Mr   Asker’s petition received no response, Mrs   Selçuk did not think it worthwhile to submit a petition herself. Furthermore, they maintained that domestic remedies were generally ineffective in relation to complaints such as their own. 64.     The Commission, in its decisions on admissibility (see paragraph   47 above) noted that the Government had not submitted any observations as to the admissibility of Mr   Asker’s application. According to its usual practice in these circumstances, the application could not therefore be declared in