REPARATION OF DAMAGES ARISING FROM TERROR AND FIGHT AGAINST TERROR

DIRECTORATE GENERAL OF

PROVINCIAL ADMINISTRATIONS

The Law no.5233 on the Reparation of Damages Resulting from Terror and Fight Against Terror took effect on 27.07.2004, and the Regulation relating to the execution of this legislation on 20.10.2004

The law amending the Law 5233 mentioned above took effect on 3 January 2006.

The Law no. 5233 is intended to peacefully settle for the damages of real or legal persons resulting from acts covered by Articles 1, 3 and 4 of Law no. 3713 on Fight Against Terror or activities carried out for fighting terror.

DAMAGES TO BE COVERED PEACEFULLY

All damages to animals, trees, crops and other moveable or immoveable property.

Damages incurred in cases of injury, mutilation and death as well as costs of medical intervention and funeral.

Damages incurred as a result of lack of access to property, which in turn derives from anti-terror activities.

ASSESSMENT OF DAMAGES

Damages to be covered under this law are determined, either directly through commissions or by group of experts with due consideration of statements made by applicants; information and documentation supplied by judiciary, administrative and military authorities; course of events leading to damage including the neglect or any fault of the applicant, if any and in line with principles of fairness and prevailing economic circumstances.

In assessments of damage to real property, the principles of assessment specified in Article 11 of the Law on Expropriation are applied proportionately.

The applicant files a petition together with all relevant information and documents describing the course of events and including data which may be useful in assessing the damage incurred.

Furthermore, in case the commission concerned finds it necessary, it asks for necessary information and documents that are needed to assess damages from judiciary, administrative and military authorities.

UNCOVERABLE DAMAGES

Damages already covered by the State by allocation of dwelling or land or through other ways.

Damages covered by court decision.

Damages ruled on by the ECtHR or incurred upon reparation as settled amicably under the provisions of the Convention.

Damages suffered as a result of economic and social causes other than terror and damages incurred by those voluntarily leaving their places for reasons not related to security concerns.

Damages resulting from deliberate acts of persons concerned.

Damages incurred by persons as a result of crimes covered by Articles 1, 3 and 4 of the law no. 3713 and who have been convicted for helping and sheltering perpetrators of terrorist acts.

This law is not applicable to those who are presently being tried for acts mentioned above until final court ruling.

PAYMENTS TO BE DEDUCED FROM COMPENSATION PAYABLE

That part of damage already covered with the contributions of projects implemented by public agencies or professional organisations which has the status of public agency,

Parts of demolished property that the victim can still benefit from in various ways,

Compensations already paid by insurance companies, public agencies or social security schemes,

Costs of medical treatment and funeral,

Assistance made through the Social Assistance and Solidarity Fund specifically to compensate damages covered by the present law,

In calculating amounts to be deduced as such, by applying annual revaluation rates specified in the law no. 213 on Tax Procedures. This provision is not applicable in cases where damages are to be covered in kind.

FORMATION OF DAMAGE ASSESSMENT COMMISSIONS

Upon applications made under the law, a commission is established in each province within ten days with the approval of Governor.

             Commission is chaired by a Deputy Governor and its members are

designated by Governor from among civil servants at least in the status of Branch Director from the following governmental sectors:

Finance, Public works and settlement, Agriculture and rural affairs, Health, Industry and commerce, andA lawyer from local bar association to be designated by the board of the

bar association.              The chair and members of the commission are re-designated in January each

year. Local bar association informs Governorate about the bar member to take part in commission until the end of December each year. Any member may be re-designated for a second term.

TERMINATION OF COMMISSION MEMBERSHIP

Any membership in commission may be terminated upon the approval of the Governor in such cases as change in the place of duty, illness, accident and any other incapability precluding the performance of commission work. The governor designates another member to fill the vacancy.

             In case any of above mentioned situations is valid for the

lawyer member of the commission, the Governor informs the bar association concerned and the bar association designates another member for the approval of the Governor.

             In case there are too many applications, more than one

commission may be established in a given province upon the approval of the Governor.

QUORUM IN MEETINGS AND RULINGS

The Commission gathers and rules with simple majority. Abstention is not allowed while decisions are taken. Any opposing member writes his/her objections and undersigns it.

PAYMENTS TO COMMISSION MEMBERS

The head and members of the commission are paid for each session an amount obtained by multiplying the indicative figure 500 by public servants’ salary coefficient for a period not extending over 6 months.

For each session : 500 x 0.04265=21,325 YTL

These payments are subject to no deduction with the exception of stamp duty.

APPLICATIONS

Applications are made to the Governorate of the province where

Damage is incurred or Event leading to damage took placeby persons suffering the damage, their legal inheritors or legal

representatives within a period of sixty days following the information of such damage and, in any case, within one year following the event leading to damage;

Any application missing these deadlines is dismissed. In cases of injury or any hospitalisation the period of time spent in health institutions is excluded from calculations of time prescription.

APPLICATION AND TIME LIMITATION FOR DECISIONS

Applications are finalised within a period of six months starting from the date of application. If necessary, the Governor may extend this time period for 3 months. Those who suffered damages in the period 19.7.1987 and 27.07.2004 when the law took effect may apply within a period of one year. The period of application was extended for one more year starting from 03.01.2006 when the amending law took effect. Applications in this context are decided on within 2 years starting from the date of application.

Public servants suffering damage have the same right to apply under the law and their cases are finalised within one year.

APPLICATIONS VIA OTHER UNITS

Applications made to other governorates than the Governorate concerned, external missions of Turkey, ministries and other governmental organisations are referred to the Governorate concerned. In such cases, the date of application is deemed as the date when relevant documents reach the Governorate concerned.

ABSTENTION

The chair and members of the Commission cannot take part in commission sessions where damages incurred by themselves, their spouses, relatives to the third degree or persons they guard or represent are addressed.

CURRENT EXPENSES

Secretary services of commissions are delivered by provincial private administrations and corresponding expenditures are covered by the budget of the Ministry and/or provincial private administration.

EXPERTSCommissions are entitled to ask for information, documentation

and assistance from other governmental organisations regarding the content of applications as well as designate experts from among various governmental agencies other than judiciary, military and security. Any personnel from governmental agencies designated as such will give priority to commission work.

Commission members cannot be designated as experts. FEES PAYABLE TO EXPERTSCommissions may decide to pay experts they designate. Payments

to these experts are calculated by taking 500 as indicative figure for each application file if they are from governmental agencies and 1,000 for other experts and multiplying these indicative figures by public employees’ monthly salary coefficient. Hence, amounts payable are

For public employees: (500 x 0.04265=21.325 YTL), Other persons: (1000 x 0.04265= 42.65 YTL)

 PER DIEM PAYABLE TO COMMISSION MEMBERS

Commission members taking part in inspections carried out in places other than their regular service locations as well as expert witnesses are entitled to per diem under the law no. 6245. In determining the per diem payable to the lawyer members of commissions, per diem payable to a civil servant in 1st degree is taken as basis.

These payments are subject to no deduction with the exception of stamp duty.

COMPENSATIONS

In cases of injury, physical disability and death, first the amount of 298.55 is found by multiplying the indicative figure 7000 by monthly salary coefficient 0.04265 ;

a) Cases of injury, One-tenth of above stated figure (298.55) is multiplied by the number

of days that the injured person was unable to attend his/her work as testified by authorised health report and the resulting figure is paid as compensation. However, compensation payable in this context cannot be more than 6 times the figure 298.55.

EXAMPLE: Case of a person with medical report stating that his/her situation precludes normal daily work for 7 days:

7000 X 0,04265 = 298.55 298,55 / 10 = 29.855 29.855 X 7 = 208.98 YTL (Payable as compensation)

b) Physical disability: Decision is made according to Annex D to the Regulation specifying the degree of loss in working ability.

EXAMPLE: A person is considered as in 2nd degree harm losing 68 % of his/her working ability:

7000 X 0,04265 = 298.55 298,55 X 35 = 10.449,25 YTL (Payable as compensation)

c) In cases of persons deceased, their legal inheritors are payable 50 times the amount mentioned above:

7000 X 0,04265 = 298.55 298,55 X 50 = 14.927,50 YTL

Provisions of the Turkish Civil Code applicable to legal inheritors are also applied in these cases.

In calculating amounts of cash payments, indicative figures and coefficients valid at the date of Minister’s or Governor’s approval for payment are taken as basis.

        In the context of the present law, no recourse can be made to the State for payables to damaged persons by real or private law legal persons.

AMICABLE SETTLEMENT The commission sends the claimant a draft document of amicable

settlement stating the net amount payable together with an invitation.

This invitation specifies that the claimant receiving this draft has to apply for signing it within 30 days and otherwise he/she will be deemed as having rejected; also stating that the applicant is entitled to apply to a court for settlement.

In case the claimant accepts the document of amicable settlement, the document is undersigned by the applicant or his/her legal representative and the chair of the commission.

In case amicable settlement is not accepted or deemed rejected according to the second paragraph, a record of dispute is taken and sent to relevant parties.

If amicable settlement cannot be reached, parties are entitled to seek judiciary processes.

Compensation specified in amicable settlement is paid, upon the approval of the Governor, within 3 months from the special budget allocation of the Ministry.

The Ministry may decide that in kind or in cash compensations over YTL 50,000 should be made with the approval of the Minister. However, the Ministry has yet taken no decision to this end. So long as no such decision is taken by the Ministry, payments over YTL 50,000 will continue to be made by respective governorates.

The State reserves its right to recourse in such payments.

All applications, statements, documents to be arranged, procedures to be carried out by official authorities and notaries as well as aids and donations made for the implementation of this law are exempt from all taxes and duties.

Notifications to be made under this law are subject to law no. 7201 on notifications. It is essential that all notifications are made personally by public servants.

AYDIN İÇYER RULING OF ECHR

In its ruling dated 17.01.2006, the European Court of Human Rights (ECHR) rejected the case of Aydın İçyer. In its ruling, the Court declared that the Law no. 5233 was an effective domestic remedy, in both theory and implementation, for compensation of damages resulting from terror and fight against terror. The Court further added that the claimant should first appeal to assessment commissions in seeking reparation for lack of access to his property. The ruling of the Court also mentioned that the Turkish Government devised various remedies, including the law no. 5233, to respond to complaints of citizens regarding losses deriving from lack of access to property; that these remedies were introduced as solution to cases pending before the Court and that the latest legislation indeed provided effective domestic remedy.

ALİ FİDAN ALİ FİDAN

BRANCH DIRECTORBRANCH DIRECTOR

DIRECTORATE GENERAL OF DIRECTORATE GENERAL OF PROVINCIAL ADMINISTRATIONS PROVINCIAL ADMINISTRATIONS