ELCI AND OTHERS v. TURKEY JUDGMENT
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G. The Turkish Government's Derogation under Article 15 of the
Convention and Decrees Nos. 424, 425 and 430
589. The summary of the Derogation of 6 August 1990 and resultant
Decrees, provided by the Government in several cases before the
Convention organs, can be found in the aforementioned Demir and Others
v. Turkey judgment (§§ 24-20). The Derogation refers to the terrorist threat
to national security in South East Turkey and to the additional powers
afforded by Decrees Nos. 424 and 425 to the Governor of the state of
emergency region to meet that threat as regards the print media, residential
prohibitions, labour disputes, looting, the evacuation of villages, the transfer
of undesirable civil servants, and any official's immunity from suit in the
exercise of those additional powers. Decree 430, promulgated on 16
December 1990, created certain safeguards in the exercise of those powers,
including a right to sue the State for loss or damages arising out of
emergency measures. On 12 May 1992 the Permanent Representative of
Turkey wrote to the Secretary General of the Council of Europe, limiting
the effect of the Derogation to questions arising under Article 5 of the
Convention.
H. Civil and administrative liability arising out of criminal offences
590. Under Article 13 of Law No. 2577 on Judicial Administrative
Procedure, anyone who sustained damage as a result of an act by the
authorities could, within one year after the alleged act was committed, claim
compensation from them. If the claim was rejected in whole or in part, or if
no reply was received within sixty days, the victim could bring
administrative proceedings.
591. Article 125 §§ 1 and 7 of the Constitution provided:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts
or measures.”
592. That provision established the State's strict liability, which came
into play if it were shown that, in the circumstances of a particular case, the
State had failed in its obligation to maintain public order, ensure public
safety or protect people's lives or property, without it being necessary to
show a tortious act attributable to the authorities. Under these rules, the
authorities could therefore be held liable to compensate anyone who had
sustained loss as a result of acts committed by unidentified persons.
593. Article 8 of Legislative Decree No. 430 of 16 December 1990
provided:
“No criminal, financial or legal liability may be asserted against ... the Governor of
a state of emergency region or Provincial Governors in that region in respect of