SELÇUK AND ASKER JUDGMENT OF 24 APRIL 1998
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In their pleadings in the present case, the Government have referred to
the case of Nizamettin Ağırtmış (see paragraph 62 above). In this
connection, the Court observes that it has been provided with only a brief
summary of the case, from which it appears that Mr Ağırtmış received
compensation in respect of the burning of his house by security forces after
the house had been abandoned and the village evacuated. These facts would
appear to distinguish the case from the instant complaints and, moreover,
from the information available to the Court, it is not clear whether
Mr Ağırtmış’s case concerned an intentional act on the part of the security
forces, such as that alleged by the applicants, or one of negligence.
In the light of the foregoing, the Court does not consider that this single
case demonstrates with sufficient certainty the existence of effective and
accessible domestic remedies for complaints such as the applicants’ (see,
mutatis mutandis, the Sakık and Others v. Turkey judgment of
26 November 1997, Reports 1997-VII, p. 2626, § 53).
69. Turning to the facts of the instant case which the Court finds to have
been established (see paragraph 57 above), it recalls that Mr Asker
presented a petition complaining about the destruction of his home to the
District Governor in Kulp (see paragraph 31 above). Despite this, no
investigation file was opened by the State authorities until May 1994, after
the Commission had communicated the applications to the Government (see
paragraphs 21–22 above). Furthermore, it would appear from the
information available to the Court that the ensuing investigation has been
extremely limited (see paragraphs 22–24 above) and has not yet been
concluded.
70. The Court considers that it is understandable if the applicants formed
the belief that, the petition to the District Governor having elicited no
response, it was pointless for them to attempt to secure satisfaction through
national legal channels (see, mutatis mutandis, the Aksoy v. Turkey
judgment of 18 December 1996, Reports 1996-VI, p. 2277, § 56). Their
feelings of upheaval and insecurity following the destruction of their homes
are also of some relevance in this connection (see the above-mentioned
Menteş and Others judgment, p. 2707, § 59).
71. The Court therefore concludes that there existed special
circumstances which dispensed the applicants from the obligation to exhaust
domestic remedies (see the above-mentioned Akdivar and Others judgment,
pp. 1213–14, §§ 76–77). It follows that the Government’s preliminary
objection on non-exhaustion must be dismissed.