SELCUK and ASKER v. Turkey
Doc ref: 23184/94;23185/94 • ECHR ID: 001-45779
Document date: November 28, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application Nos. 23184/94 and 23185/94
Keje SELÇUK and ismet ASKER
against
Turkey
REPORT OF THE COMMISSION
(adopted on 28 November 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-27). . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-22) . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 23-27). . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 28-137). . . . . . . . . . . . . . . . . . . . . . 5
A. The particular circumstances of the case
(paras. 29-44). . . . . . . . . . . . . . . . . . . . 5
B. The evidence before the Commission
(paras. 45-118) . . . . . . . . . . . . . . . . . . . 7
1) Documentary evidence
(paras. 45-63) . . . . . . . . . . . . . . . . . . 7
2) Oral evidence
(paras. 64-118) . . . . . . . . . . . . . . . . .11
C. Relevant domestic law and practice
(paras. 119-137). . . . . . . . . . . . . . . . . . .21
III. OPINION OF THE COMMISSION
(paras. 138-216) . . . . . . . . . . . . . . . . . . . . .24
A. Complaints declared admissible
(para. 138) . . . . . . . . . . . . . . . . . . . . .24
B. Points at issue
(para. 139) . . . . . . . . . . . . . . . . . . . . .24
C. Concerning the existence of valid applications
(paras. 140-143). . . . . . . . . . . . . . . . . . .24
Decision
(para. 144) . . . . . . . . . . . . . . . . . . . . .25
D. The evaluation of the evidence
(paras. 145-166). . . . . . . . . . . . . . . . . . .25
E. As regards Article 8 of the Convention and Article 1
of Protocol No. 1
(paras. 167-171). . . . . . . . . . . . . . . . . . .33
CONCLUSIONS
(paras. 172-173). . . . . . . . . . . . . . . . . . .34
TABLE OF CONTENTS
Page
F. As regards Article 3 of the Convention
(paras. 174-177). . . . . . . . . . . . . . . . . . .34
CONCLUSION
(para. 178) . . . . . . . . . . . . . . . . . . . . .35
G. As regards Article 2 of the Convention
(paras. 179-180). . . . . . . . . . . . . . . . . . .35
CONCLUSION
(para. 181) . . . . . . . . . . . . . . . . . . . . .35
H. As regards Article 5 para. 1 of the Convention
(paras. 182-186). . . . . . . . . . . . . . . . . . .35
CONCLUSION
(para. 187) . . . . . . . . . . . . . . . . . . . . .36
I. As regards Articles 6 para. 1 and 13 of the Convention
(paras. 188-198). . . . . . . . . . . . . . . . . . .36
CONCLUSIONS
(paras. 199-200). . . . . . . . . . . . . . . . . . .38
J. As regards Articles 14 and 18 of the Convention
(paras. 201-204). . . . . . . . . . . . . . . . . . .39
CONCLUSIONS
(paras. 205-206). . . . . . . . . . . . . . . . . . .39
K. Recapitulation
(paras. 207-216). . . . . . . . . . . . . . . . . . .40
PARTLY DISSENTING OPINION OF MR. N. BRATZA. . . . . . . . . . .41
PARTLY DISSENTING OPINION OF MR. I. CABRAL BARRETO. . . . . . .42
APPENDIX I: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23184/94. . . . . .43
APPENDIX II: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION 23185/94. . . . . .52
I. INTRODUCTION
1. The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A. The application
2. The applicants are Turkish citizens who were residents of the
village of islamköy in the Kulp district of the province of Diyarbakir.
They were born in 1938 and 1933 respectively. They were represented
before the Commission by Professor K. Boyle and Ms. F. Hampson, both
teachers at the University of Essex.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. B. Çaglar.
4. The applicants allege that their homes and property were burned and
that they were forcibly and summarily expelled from their village by
State security forces in June 1993. They invoke Articles 3, 5, 6, 8, 13,
14 and 18 of the Convention and Article 1 of the First Protocol. The
second applicant, ismet Asker, also invokes Article 2 of the Convention
in relation to the alleged events.
B. The proceedings
5. The applications were introduced on 15 December 1993 and registered
on 7 and 11 January 1994 respectively.
6. On 5 April 1994, the Commission decided, pursuant to Rule 48 para.
2 (b) of its Rules of Procedure, to give notice of the applications to
the respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7. As regards Application No. 23185/94, in the absence of any
observations submitted by the Government and following notification to
the Government that the application would be examined by the Commission,
the Commission declared the application admissible on 28 November 1994.
8. As regards Application No. 23184/95, the Government's observations
were submitted on 27 September 1994 after one extension in the time-limit
and the applicant's observations in reply were submitted on 23 November
1994. On 8 December 1994, the Commission refused the Government's
request to adjourn the examination of the case pending the investigation
by the public prosecutor and requested them to submit any further
observations which they might wish to make by 23 January 1995. On 3 April
1995, the Commission declared the application admissible.
9. The text of the Commission's decisions on admissibility was sent to
the parties on 5 December 1994 and 26 April 1995 respectively and they
were invited to submit such further information or observations on the
merits as they wished. They were also invited to indicate the oral
evidence which they might wish to put before delegates.
10. On 7 February 1995, the Government submitted further observations
in Application No. 23185/94 and on 15 May 1995, provided a requested
document. On 23 May 1995, the applicant's representatives submitted
further observations in reply.
11. On 1 July 1995, the Commission decided to take oral evidence in
respect of the applicants' allegations. It appointed three delegates for
this purpose: Mrs. G.H. Thune, Mr. N. Bratza and Mr. E. Konstantinov. It
notified the parties by letter of 21 July 1995, proposing certain
witnesses and requesting the Government to identify certain security
force personnel and two public prosecutors. The Government were also
requested to provide the contents of the investigation files of the two
public prosecutors apparently involved in investigating the alleged
incident.
12. On 11 August 1995, the Government submitted a document relating to
Application No. 23184/94.
13. By letter of 12 September 1995, the applicant's representatives made
proposals as to witnesses in both cases. By letter of 15 September 1996,
the Government identified one of the witnesses proposed by the
Commission.
14. A further request for outstanding information and documents was sent
to the Government by the Secretariat on 26 September 1995.
15. By letter of 9 January 1996, after the expiry of the time-limit set
for that purpose, the Government proposed 4-5 additional witnesses. On
26 January 1996, the Government provided copies of documents in one of
the investigation files requested. On 30 January 1996, the Government
proposed an additional witness.
16. Evidence was heard by the delegation of the Commission in Ankara
from 5 to 6 February 1996. Before the Delegates the Government were
represented by Mr. A. Gündüz, Agent, assisted by Mr A. Sölen,
Mr. A. Kurudal, Ms. N. Erdim, Mr. Abdülkadir Kaya, Mr. A. Polat,
Mr. Ahmet Kaya, Mr. C. Aydin, Ms. T. Toros, Ms. M. Gülsen and
Ms. A. Emülser. The applicants were represented by Ms. F. Hampson, and
Mr. O. Baydemir, counsel, assisted by Ms. A. Reidy and Ms. D. Deniz
(interpreter). Further documentary material was submitted by the
Government during the hearings. At the conclusion of the hearings, and
later confirmed by letter of 14 February 1996, the Delegates requested
the Government to provide certain documents and information concerning
matters arising out of the hearings and providing explanations for the
absence of certain witnesses. The time-limit expired on 5 April 1996.
17. On 8 March 1996, the Commission decided to invite the parties to
present their written conclusions on the merits of the case, following
transmission to the parties of the verbatim record. The Commission joined
the two applications.
18. On 20 May 1996, after an extension of the time-limit, the
applicants' representatives submitted their final observations on the
merits. On 25 June 1996, after a further extension in the time-limit, the
Government submitted their final observations, appending a number of
documents.
19. By letter dated 23 September 1996, the Secretariat informed the
Government that it had not provided certain documents and items of
information requested following the hearings in Ankara. The Government
were requested to clarify whether they intended to provide the
information or whether they were unable to, and were informed in light
of the Commission's intention to resume examination of the case that
their response should reach the Commission by 1 November 1996 at the
latest.
20. By letter dated 30 October 1996, which arrived on 4 November 1996,
the Government submitted further documents.
21. By letter dated 19 November 1996, the Government submitted copies
of extracts of duty logs.
22. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be effected.
C. The present Report
23. The present Report has been drawn up by the Commission in pursuance
of Article 31 of the Convention and after deliberations and votes, the
following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
24. The text of this Report was adopted on 28 November 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
25. The purpose of the Report, pursuant to Article 31 of the Convention,
is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
26. The Commission's decision on the admissibility of the application
No. 23184/94 is attached hereto as Appendix I and the decision in
No. 23185/94 attached as Appendix II.
27. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
28. The facts of the case, particularly concerning events in or about
June 1993, are disputed by the parties. For this reason, pursuant to
Article 28 para. 1 (a) of the Convention, the Commission has conducted
an investigation, with the assistance of the parties, and has accepted
written material, as well as oral testimony, which has been submitted.
The Commission first presents a brief outline of the events, as claimed
by the parties, and then a summary of the evidence submitted to it.
A. The particular circumstances of the case
1. Concerning the alleged events in the village of islamköy
a. Facts as presented by the applicants
29. The various accounts of events as submitted in written and oral
statements by the applicants are summarised in Section B below. The
version as presented in the applicants' final observations on the merits
is summarised here.
30. About six months prior to June 1993, the villagers at islamköy had
been threatened by the security forces that the homes of ten named
villagers would be burned down. It had later appeared that the threat had
been retracted. There had been no clashes in the village between the
security forces and the PKK but the PKK used the road which ended near
the village and the security forces regularly visited the village.
31. On 16 June 1993, the security forces came to islamköy in large
numbers. Two houses were burned. Recep Cömert, the commander, gave orders
for the house of ismet Asker to be burned. Soldiers poured gasoline on
the house and set fire to it, even though ismet Asker and his wife Fatma
were inside. Villagers who came to put out the fire were threatened by
the security forces and prevented from helping. The house and its
contents were totally destroyed.
32. The security forces then went to the house of Keje Selçuk. Despite
her pleas to Recep Cömert, her house was set on fire, also by gasoline.
Villagers were again prevented from assisting and Recep Cömert pushed
Keje Selçuk to the ground. She understood that she was being told to
leave the village.
33. ismet Asker left the village and went to complain to the Kulp
district governor, naming Recep Cömert as the officer in charge. He was
sent to the gendarmes.
34. Ten days after the burning of the houses, the security forces
returned to the village. Recep Cömert was present and gave the order to
set fire to the mill belonging to Keje Selçuk and three others. Villagers
were prevented from trying to put out the fire. Two other houses were set
on fire in the village and destroyed that day. Another house was set
alight but the fire was put out.
35. Keje Selçuk had left the village and was staying with her daughter-
in-law in Diyarbakir. Her brother-in-law Nesih Selçuk telephoned her to
inform her that the mill had been destroyed.
b. Facts as presented by the Government
36. The Government submit that applications by Keje Selçuk and
ismet Asker have been concocted by others and that they are apparently
acting under the influence of the PKK and/or with a view to obtaining
money. The villagers of islamköy were under real and intense pressure
from the PKK, who purported to replace the State and punished any
recourse to the Turkish authorities. The applicants' homes and
possessions were burned by the PKK as a punishment and warning. In the
case of ismet Asker, his son was doing his military service and the PKK
urged people not to send their sons into the army. In the case of Keje
Selçuk, she has two sons, one in the army and the other a civil servant
who had stood up against the PKK. The Government also point to the
incident in a neighbouring hamlet, Tur, where a hundred or so PKK
terrorists locked the people in the mosque and set fire to the buildings,
the people having to escape by breaking down the door. The village of
islamköy had on the other hand had good relations with the security
forces, had had village guards and neither applicant was suspected by the
authorities of any anti-Government activity but were both law-abiding.
37. The Government dispute that any order or paper was issued six months
before the incidents in June, threatening ten households. They also
submit that it is not clear from the evidence that Keje Selçuk's mill was
burned at all, or that it was at that time in a functional state, but
even if it was destroyed, this was not done by the security forces.
38. ismet Asker did not, as he alleges, make any petition to the Kulp
district governor, since the records reveal that no petition was
registered and ismet Asker has no acknowledgement receipt or registration
number, which would be the case if he had made such a petition.
2. Proceedings before the domestic authorities
39. Following the communication of the applications by the Commission
to the respondent Government on 15 April 1994, it appears that the
Ministry of Justice (International Law and External Relations General
Directorate) contacted the Chief Public Prosecutors' office in
Diyarbakir, which in turn made enquiry of the public prosecutor's office
in Kulp by letter dated 4 May 1994 as to whether the applicants had
applied to them and requesting that an investigation be initiated if they
had not.
40. Since no petitions had been received from the applicants, the Kulp
prosecutor opened investigation file 1994/57. By letter dated 11 May
1994, the public prosecutor in Kulp requested the gendarmerie in Kulp to
ascertain the addresses of the applicants and to invite applicants to
present themselves to the prosecutor's office as soon as possible. By
letter of 18 May 1994 the public prosecutor enquired of the district
governor whether any petition had been filed by ismet 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 ismet Asker. On 16 June 1994, the public
prosecutor's office reminded the gendarmerie that it had had no response
to its enquiries as to the whereabouts of the applicants.
41. On 20 June 1994, ismet Asker made a statement in the office of the
public prosecutor. Keje Selçuk made a statement to the public prosecutor
on 21 June 1994.
42. 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 Recep Cömert had been carried out at
islamköy on 16 June 1993 and whether the applicants' houses had been
burned by those units. No reply is included with documents from the
investigation file provided to the Commission.
43. On 30 November 1994, the Kulp public prosecutor, Erdal Yatmis,
issued a decision of lack of jurisdiction in regard to the applicants'
complaints against Recep Cömert and the security personnel under his
command alleging offences against property in the winter months of 1993.
The decision stated that, while the applicants had complained to the
effect that on the date of the offence intensive clashes took place in
islamköy between the security forces and terrorists and that their houses
burned down during those clashes under the orders of Recep Cömert, it
transpired from the investigation that the incident occurred while the
members of the security forces were carrying out their administrative
duties. Pursuant to the provisions of the Public Officer Legal
Proceedings Procedure and Articles 1/b and 4/i of the Decree establishing
the State of Emergency Regional Governor's Office as well as Article 2
of Law No. 3713, the Kulp Administrative Council was the body with
authority to conduct an investigation in relation to the defendants. The
public prosecutor's office therefore decided to transfer the file to the
Kulp District Governor's office for the necessary measures to be taken.
44. On 30 November 1995, the investigation file was referred to the
Governor of Kulp district.
B. The evidence before the Commission
1) Documentary evidence
45. The parties submitted various documents to the Commission. The
documents included reports about Turkey, domestic case-law and statements
from the applicants and witnesses concerning their version of the events
in the case.
46. The Commission had particular regard to the following documents:
a) Statements by applicants
Keje Selçuk
Statement dated 22 July 1993, taken by the Human Rights Association
(HRA), Diyarbakir
47. On 16 June 1993, 400 gendarmes from the Kulp gendarmerie under the
command of officer Recep Cömert carried out a raid on islamköy at about
7-8.00 hours. First, they set fire to the house of ismet Asker, with all
his property. Then, they came to the applicant's house, ejected her and
her children, gathered their goods into one room, poured petrol over them
and set them on fire. After the house had burned down, he (Recep Cömert)
told the villagers that, if they did not leave, the security forces would
burn their houses, and the villagers inside, without blinking an eye.
48. About ten days later, the same gendarmes returned to the village.
They threw petrol over, and set fire to, the houses of Serif Tanrikulu,
A. Kerim Ergül and Kazim Sahin as well as the mill owned by the applicant
and three others, including Nesih Selçuk. The gendarmes beat with sticks
and truncheons some of the villagers who tried to put out the fires. The
villagers whose homes had been burned were forced to move to the towns.
The applicant went to live with her daughter in Diyarbakir. She had not
applied to any institution in respect of her complaints. She referred to
ismet Asker's petition to the Kulp district governor remaining
unanswered.
Statement dated 21 June 1994, taken by the public prosecutor
(unidentified)
49. Gendarmes came to the village about a year before. They wanted ismet
Asker and herself to leave the village but they had not done so. She took
some of her belongings out of her house and then the gendarmes set fire
to it. They burned ismet Asker's house also. When she asked why they
burned her house and were driving her out of the village, they said that
it was because she harboured terrorists and supplied them with meals. She
had never done so. She did not know the soldiers or their commanding
officer. There had been no incidents before in the village.
50. The applicant's statement taken by the HRA (above) was read out to
her. She stated in reply to questioning that she did not know the
commanding officer, that she did not know whether villagers were hit with
truncheons or whether they had come to the village and set fire to houses
after her own house had been burned down. She had never said those things
but it was what they had written down. All she wanted was compensation
for the damage caused.
Statement dated 28 October 1994 taken by Servet Ayhan (HRA)
51. A policeman had come to her daughter's house on 17 June 1994 and
said that she should give a statement to the public prosecutor. When she
went to the prosecutor's office, they would not allow her daughter to
enter with her and a person that she did not know interpreted. The
prosecutor had asked her questions relating to her complaints. She had
replied that she did know the commander's name, Recep. She explained in
this statement that she knew him as he had come to the village from time
to time. When the HRA had asked for his surname, she had found out his
surname from the villagers and given it to them. In answer to the
prosecutor, she had explained that she had been present when her house
was burned down, and had only been able to save the clothes that she was
wearing. When her mill had burned down, she had been staying with her
daughter in Diyarbakir and her business partner had informed her of it.
Statement dated 22 August 1995, taken by the HRA, Diyarbakir
52. After the applicant had made her application, she had been called
to the gendarme station and asked to sign a paper but did not know what
was in it. Since her house was burned between 7.00 and 8.00 hours many
villagers had witnessed it including Nesih Selçuk, Necmettin Korkmaz and
ismet Asker. She wanted to continue with her case.
ismet Asker
Petition to the District Governor, dated 25 June 1993
53. On 16 June 1993 his two storeyed house with eight rooms was burned
down completely during an operation at Islam village (Islamköy). The
property destroyed included 10 woollen mattresses, 3 carpets, 9 kilim
rugs, kitchenware, crockery, a wooden grain bin, 2 tons of wheat, sacks
of rice, tea, sugar and his store of 180 poplar trunks. His home had been
burned unnecessarily and he and his family had been left homeless and
in a desperate situation. He asked for recompense for his house and goods
and respectfully requested his petition to be processed.
Statement dated 14 July 1993 taken by the HRA, Diyarbakir
54. On 16 June 1993, about 400 gendarmes under orders of Recep Cömert
from the Kulp district gendarmerie organised a raid on the village. First
they came to his house and told him and his wife Fatma to get their
things from the house. As they did so, they realised the house was
burning and rushed out through the back door. The gendarmes seemed to
intend to burn them alive. The gendarmes threatened the villagers who
arrived to help put out the fire. After waiting for his house to burn
down completely, the gendarmes went to the house of Keje Selçuk and
burned it with all the goods inside. Then they left.
55. The previous winter, the security forces had sent a list of names
concerning ten families telling them that they should leave the village
by summer. He did not understand why, since at one point they said that
they would not burn things, they then came in an operation without
warning to burn his house.
56. Ten days after the raid, gendarmes under Recep Cömert came again.
They completely burned down the houses of Serif Tanrikulu, A. Kerim Ergül
and Kazim Sahin as well as the mill belonging to Keje Selçuk and three
others. After that, Recep Cömert addressed the villagers, threatening
them and stating that if the villagers did not leave the village, they
would be burnt together with their houses.
57. The applicant made an application to the Kulp district governorship
on 25 June 1996 relating to the first incident. The district governor
asked him through an interpreter (since the applicant did not know
Turkish) whether he knew anyone amongst the gendarmes, and he replied
that he knew Captain Recep Cömert. The district governor stated that he
would accept the petition.
Statement dated 20 June 1994, taken by a magistrate in the public
prosecutor's office
58. In the winter of 1993 the Kulp district gendarmerie company
commander came to the village, assembled the villagers and threatened
them, saying that if they did not leave the village he would burn it. In
August 1993, as far as he could remember, Cömert carried out a raid on
the village with a large number of soldiers. They set fire to his house
without giving reasons. A gendarme had told them to fetch their things
before they began burning it. When he and his wife were in the house,
they realised it was on fire and ran outside. They did not know how it
was set on fire. The soldiers prevented him and the villagers from
putting out the fire. After his house burned, they went to burn down
Keje Selçuk's house. He did not know who it was who had burned his house
until later, when other villagers told him that they were soldiers under
the orders of Recep Cömert.
59. He had suffered damage to property amounting to 200.000.000
(million) TL. He submitted a petition to the Kulp district governor's
office and they later took a statement from him at the gendarmerie. He
received no response to his petition. After the incident, he went to a
building site in Diyarbakir looking for work and told his story to the
contractor. The contractor told him to go to the provincial governor's
office to ask for help. A person with the contractor, whom he did not
know, wrote out a petition and made him sign it. He did not know what
was in it. He was not aware of giving a statement to the HRA.
60. Before his house burned down, PKK activists (took) food and supplies
(from) the village. He had nothing to do with the PKK.
b) Statements by other persons
Servet Ayhan
Statement dated 28 October 1994
61. The HRA staff who took Keje Selçuk's statement made mistakes. She
was not in the village when the second incident took place. Nesih Selçuk
had witnessed it.
Sedat Aslantas
Statement dated 12 April 1995
62. The HRA people took statements at their association premises. The
only exception was when they performed investigations at the scene of
incidents. They would take statements there. There was no logic to
statements having been taken at a construction site.
c) Official Records
63. The Government have supplied copies of the duty log of Kulp
gendarmerie for the dates 15-19, 21-26 June 1993. These daily records
indicate the routine duties eg. guard duties, training at the gendarmerie
station. They also indicate patrols to villages in the area or "village
duty". Such visits are recorded as having taken place on 17 June (a
motorised patrol to Narli involving 10 gendarmes), on 21 June (a patrol
on foot to Karabalak of 10 gendarmes), on 22 June (a motorised patrol
to Dolmetepe and Özbek involving nine gendarmes led by Recep Comërt) and
on 23 June (a motorised patrol to Yaylak and Baloglu of nine gendarmes
led by Recep Comërt).
2) Oral evidence
64. The evidence of 10 witnesses heard by the Commission's Delegates may
be summarised as follows:
ismet Asker
65. ismet Asker stated that he was born in 1933. In June 1993, at about
08.00 hours, soldiers came to the village. There was no road beyond his
house, so they got out of their vehicles and continued in to the village
on foot. There were many soldiers about (he only guessed that there were
400) and seven tanks and 27-28 vehicles. He was near the front door
watering the wheat when the soldiers arrived. At that moment, his wife
was at the house holding a breakfast tray. He went into the house where
the soldiers were looking around, having forced a door. He went outside
again. They set the house on fire and he went inside to try to save his
furniture. A soldier whispered in his ear that he could take out his
furniture. There was too much smoke and they were unable to save
anything, except for some mattresses. The house was set on fire by
gasoline or petrol. He saw the container in a soldier's hand when he was
on the upper floor, throwing furniture out. There was a lot of wood and
the flames reached the ceiling: he and his wife were almost trapped
inside. He had thought that if he and his wife stayed inside they would
not set the house on fire.
66. The commander was there when they burned his house. He asked the
commander why they burned his house. The commander, swearing, told him
to go away (he understood from the gesture). While he said at one point
that he did not know the commander's name, he referred to a diminutive
name Reco and the name Recep and said that this was the only name he knew
from all the soldiers present. It was Recep and members of his team who
burned down his house.
67. The soldiers prevented his relatives and the villagers from putting
out the fire or removing the furniture. They were rough but he did not
see any beatings himself.
68. Ten days later, the soldiers returned to the village at night. He
saw the soldiers when he left in the morning to go to Kulp. The soldiers
asked for his identity card. He did not see the mill burned with his own
eyes but he saw smoke and, when he asked, he was told that they had
burned the mill. The mill had been functional before. This was the same
day he went to Kulp to hand in his petition.
69. He submitted a petition to the district governor. He usually put his
thumbprint on documents but he had signed the petition. On being shown
the copy of the petition, he said that it was his signature. A man whom
he did not know wrote the petition for him. The governor signed it and
sent it to the police. He had received no response to his petition.
70. Previously the terrorists had used the road passing the village.
There had been village guards at one time and in those days the soldiers
had gone into the mountains. The soldiers had come to the village before
by helicopter.
71. Six or seven months before the incident, news had come to the
village warning that villagers should move from outside areas into the
village and then they might not be burned. He was told by a number of
people, including his younger sister, that his name was on the paper. It
was an order from the police. Ten houses were chosen, as it was said
that terrorists went there. He had moved some of his furniture out of the
house at this stage, sending some of it to his son and sister. His house
stood alone on the road at the edge of the village. They (the PKK) used
to knock on his door, but he was hard of hearing and they would go away
and leave him alone. Even if he had bread, he said that he did not.
72. As regarded his statement to the HRA, it was written in an office
(possibly Osman's office), not at a construction site. He chose Osman
(Osman Baydemir) for his lawyer. He told him what to write.
Fatma Asker
73. Fatma Asker was born in 1938. At about 08.00 hours, when she was
holding a tray and teapot, four soldiers came to the door and asked whose
house it was. When she told them, they told her to call her husband. He
was outside in the fields not far away. There were 27 military vehicles
filled with soldiers. Their commander was Recep, whom she recognised as
he had come to the village many times before. By the time her husband
came, the soldiers had set the house on fire. She saw a soldier holding
a white plastic bag with a gasoline container inside. Recep told him to
pour and the soldier poured gasoline in four places. Recep was angry with
her and told her that if she interfered he would kill her. She went into
the house to try to save furniture and shoes but there was so much smoke
that she thought that she would be suffocated. The soldiers knew that
they were in the house. Recep was standing by the house. He did not let
the villagers help her or her husband. When their house had burned down,
Recep and the soldiers went next to burn the house of Keje Selçuk. She
did not see Sait Memis, Celal Seker or Sah Simsek in the village that
day. Tevfik Karaaslan was there that day.
74. That night, she stayed in a neighbour's house. Since Recep had told
them to go, they left the village to go to Diyarbakir. Ten days later
they returned to the village to harvest their wheat. Early in the
morning, when she and her husband were travelling to Kulp, as they passed
the upper part of the village, she could see the mill below burning.
Before this happened, the mill had been working and they had taken their
wheat there. Two houses were also burned. She did not see who started the
fire. On the road to Kulp they met soldiers who stopped them. There were
soldiers in the village also. She did not recognise any of them. She did
not see anyone being beaten.
75. There had been news in the village that they would have to leave or
houses would be burned but she did not know where it came from and it did
not say whose houses were to be burnt.
76. The PKK used to come and go in the area of the village, using the
road to reach the mountains but there had been no clashes. The PKK were
armed: they held meetings, and they forced the villagers to give them
their mules and foodstuffs. Her husband had a grocery store, with
matches, light bulbs etc but did not sell food. They were poor and did
not give the PKK what they did not have. But they were alone and when
they had something they gave it out of fear. When asked by the Government
Agent why Recep burned their house, she said that they (the security
forces) used to say that PKK members came to the village, that they fed
them and were not friends.
77. All the villagers had left the village. They were frightened. She
and her husband had received no help from the State.
Keje Selçuk
78. Keje Selçuk stated that she was born in 1938 and was a widow. One
of her sons worked for the rectorate of religious affairs. She lived in
a two-storey house with four rooms. In June 1993, in the morning when she
had eaten breakfast, Necmettin Korkmaz warned her that soldiers were in
the village. She saw smoke and the neighbours were saying that the
soldiers had burned ismet Asker's house. There were many soldiers around
the village and many vehicles. Recep, whom she knew since he had been to
the village on previous occasions, and five soldiers came to her house.
Recep poured gasoline on the house and set in on fire. When she protested
and pleaded, they answered that she helped outsiders and fed the PKK. She
took the Koran to show it to Recep. When she asked where she should go
now, Recep said that she should leave the village. He pushed her away.
When her brother came to put out the fire, Recep swore at him. The
soldiers did not let her brother, Nesih Selçuk or Necmettin Korkmaz put
out the fire. Though she did not speak Turkish, she could understand when
he told her to get out and the motion which he made with his hand. Her
own children were not there but there were children of the neighbours at
her house.
79. She remained in the village at the house of a neighbour (Necmettin
Korkmaz) that night and in the morning went to her daughter's house. Ten
days later, her brother-in-law rang her in Diyarbakir and told her that
the mill, which she owned with him and two others, had been burned by the
soldiers. He said nothing about villagers being beaten.
80. Previously, the soldiers used to come to the village, search it
quickly and leave. Threats had been made to the village. First, they said
that ten houses would be burned, then that all the houses should be
evacuated and burned and then later they said that they would not burn
them. Villagers said that they heard this from the soldiers. Her house,
in the centre of the village, but separated from the other houses by a
creek, was on the list of ten houses to be burned.
81. She went to Diyarbakir and told her story. She did not remember the
names of the people who took her statement. She did not know the name
Sedat Aslantas. No-one told her anything about how to apply for
compensation to the administrative courts. She also gave her statement
to the public prosecutor. She had told the prosecutor the name of Recep.
She received no help from the State.
82. She knew Celal Seker, Sah Simsek and Sait Memis but they lived far
away and they were not there when her house was burning. The first two
were or had been village guards. No-one lived in the village any more.
Even the village guards were afraid.
Necmettin Korkmaz
83. The witness, aged 73, was a muhtar in islamköy for 32 years and was
muhtar in June 1993. The village consisted of 145 households and,
including the nomads nearby, had 3 110 people. On the day of the
incident, at about 07.00 hours, the witness heard children shouting that
there was a fire. He took an axe and found the house of ismet Asker was
burning. He shouted to the villagers to put out the fire. The officer
Recep, a senior sergeant, was there however, holding a container and a
bag saying that he would kill them if they tried to help. He knew Recep
as he had been to the village before and had been in Kulp for 5-6 years.
Recep said that he was going to Keje's house and the witness pleaded with
him. The witness told Keje to take the Koran to him to dissuade him.
Recep pushed Keje who fell on her back. He saw Recep pour gasoline on
three parts of Keje's house and burn it. He ordered the soldiers to kill
anyone coming near and used obscene words. Recep said that he was burning
ismet Asker's house because he provided food for terrorists. There were
many soldiers in the village.
84. Ten days later, Recep returned. There were soldiers in the fields.
The witness saw smoke coming from the mill. He saw with his own eyes that
Recep gave the orders and the soldier with him was pouring petrol. Recep
told the other soldiers to shoot anyone who came near. He said that the
mill was burned so that the PKK could not use it. Kazim Sahin's house was
burned also. At a date around this time, of which the witness was not
sure, General Aydin arrived in a helicopter and wanted to know what had
been happening. The General had asked who had burned Keje's house and the
witness had said that it was Recep. The General had called Recep, who was
present and scolded him. The witness stated that General Bahtiyar Aydin
had stayed as a guest in the village on three occasions. One or two
months after the mill incident, the witness gave up and went to live in
Istanbul.
85. The village had previously had very good relations with the security
forces. They used to conduct searches. The PKK generally used to come
to the village, take a look and leave. He denied seeing any meetings or
that he had been warned not to take his complaints to the Government. By
this time, the village has been empty for three years and all the people
were scattered. The whole village, including his house, was destroyed by
Major Ali. The village was burned in instalments. About 120 houses were
destroyed by the soldiers. Another 22 houses were burned by the PKK,
during an incident in the Tur hamlet far from the village. The Tur
incident happened after he had left the village for Istanbul: he heard
that the PKK had locked everyone in the mosque and burned the houses. The
people escaped by breaking down the door.
86. Before the incident, during the winter, news had reached the witness
that a warning was being given that people should leave ten of the
houses. People said that they had received a paper telling them to leave.
The witness saw a paper which at one stage he said was signed by the
Major, then that it was signed by Recep. There had been a telephone call
telling them the same thing. The witness went to the Major about it three
times. The Major said that if the people did not let in any strangers
nothing would happen.
87. When asked why a village on good terms with the authorities would
be burned, the witness said that he had been told that their village was
in the foothills and that they (the security forces) did not believe
(trust) them any more. On the one hand the soldiers were bothering them,
on the other the PKK: they were between a stone and a hard rock.
Nesih Selçuk
88. The witness was a neighbour of Keje Selçuk and her brother-in-law.
He lived 15-20 metres away. He stated that there was a military operation
in the village - he did not know how many soldiers there were. They used
to come in vehicles, anything from 10 to 30. Necmettin Korkmaz told him
that the commander, Recep, intended to burn Keje's house. The witness
went to the house where he saw Recep standing outside the door and
pleaded with him. Recep swore at him and told him to clear off or he
would kill him. Keje's house was set on fire. Recep was with two privates
to whom he gave the order to start the fire. He shouted at the villagers
to stop them trying to put the fire out. The house of ismet Asker was
also burned. He heard that the houses were burned because the terrorists
had been coming, but he did not know if that was true or not. The
witness, an elder, knew Recep as the district commander based in Kulp and
had seen him frequently. Recep had visited the village once a week, once
a fortnight. While he knew Recep he did not know who any of the other
commanders might be and he did not know who was the chief of the
operation.
89. Ten days later, at the hour of morning prayer, the witness who lived
opposite the health centre, saw soldiers banging on its door. The
soldiers used to use the centre to sleep in at night. The witness took
over the key. One soldier was left to look after their equipment. He had
a white bag in his hand and went off with it. The soldiers set fire to
the house of his maternal uncle, who was absent in Diyarbakir, and also
to the house of Kazim Sahin. They set fire to the mill which the witness
co-owned with two others. It was already burning when he ran over. He
protested to Recep who was at the mill. Recep said "It was an old mill.
Build yourself a new one." He telephoned Keje, who had gone to her
daughter's house in Diyarbakir and informed her that the mill had been
burned. The mill was waterpowered from a canal which had been built and
was the only one which functioned in the summer. People from the village
and a neighbouring village brought their wheat and it was ground into
flour.
90. Previously the soldiers used to come to the area but did not pay
much attention to the village. They would ask if the villagers had seen
any strangers. As regarded the PKK, this witness never saw them. He heard
that they visited another village and that, at night, they used to pass
down the road through their village. In response to the Government Agent,
he agreed that the PKK came to the village to take things. The villagers
were forced to give things. On one occasion, the PKK took his mule. They
used it to carry loads and then left it near the village. He never heard
the PKK tell the people not to go to the State but he knew that if they
complained their lives were in danger. ismet Asker's house was burned
because it was situated on the road where the PKK used to pass. ismet
used to have a small store which sold goods but no food. The PKK did not
come to the mill.
91. He stayed in the village that summer but left in the winter. They
left the village because they could not cope. They were between two
forces, both sides were armed and though they respected the State they
came at them with weapons from both sides. He had heard nothing about
previous threats to burn certain houses. He made no complaint about the
mill since it was the State that had burned it down. No-one ever asked
him to make a statement about it. Sait Memis was the muhtar in
June 1993. He had taken over from Necmettin Korkmaz who had been muhtar
for over thirty years. Memis lived in Tur, a hamlet half an hour away and
knew that the soldiers had burned the houses. He did not see him on the
days the houses and mill were burned. He recalled seeing a helicopter
land in the field in front of his house and a high ranking officer
arrive. He heard that the general had asked who had set fire to the house
and when the people gave Reco's name, the general chided him. He heard
that this general was later killed in Lice. This occurred on the day that
Keje's house burned.
92. ismet Asker stayed in the village for a few months. Keje also
returned for a while and then left again after a few months.
M. Sait Memis
93. The witness was born in 1955 and had been living in Diyarbakir for
a year. He was muhtar of islamköy from 1989 to 1994. Necmettin Korkmaz
was the previous muhtar. Tevfik Karaaslan became muhtar after the
witness. The witness used to live in Tur hamlet, one or one and a half
kilometres (20 minutes by foot) away from islamköy village, which was on
a lower level.
94. On the morning of the incident, the witness saw smoke coming from
the lower area. He asked what was going on and children, who had been
minding animals, said that ismet Asker and Keje Selçuk's houses had been
burned by terrorists during the night. Other passers-by said the same
thing. There were definitely no soldiers and the security forces never
raided or caused damage to the village. Because of the situation of the
hamlet, they could see if soldiers came to the area below or passed by
or would at least hear news of it. Though it was his duty to go to the
village, it was dangerous and his life would have been at risk. He
referred to PKK activity and the laying of mines which meant they could
not walk around freely. He went to the village two days later. He saw
that ismet Asker's house had been burned but did not see ismet. He did
speak to Keje Selçuk who said that terrorists had come at night, taken
her out and burned the house. He did not see Nesih Selçuk. All the people
he asked said that it was the PKK who had come and burned two houses. He
went shortly afterwards (a week to ten days) to report orally to the
district governor what had occurred. Nothing was written down. Afterwards
he told the gendarmerie. He could only guess at the name of the commander
in charge of the gendarmerie, a major, but he knew Recep Cömert to be in
charge of the district gendarmes. He told him about the burning. He was
not asked to make a statement. He was summoned by the public prosecutor
in about January/February 1994 and responded orally to questions about
a petition alleging that an incident had occurred.
95. Recep came to the village 10-15 days later on an operation with
other soldiers. The witness talked to him on that occasion. The soldiers
looked at the houses which were burned.
96. There were six mills in the village. He did not know if Nesih's and
Keje's mill was still standing, or if it had burned down or later
collapsed. All the houses in the village had been burned. He did not go
to the village to see what happened when the mill and Kazim's house were
burned. As muhtar his life was at risk from the PKK. He never asked about
the mill, and did not see it, but he was sure that it was the PKK who
burned it down. It had not been working after a flood.
97. No houses had been burned by the PKK before this. After this time,
batches of houses were burned every 10-15 days until none were left in
November 1994. He left Tur following an attack by the PKK in April 1994.
The PKK (100-200) had assembled the people and put them in the mosque.
They set fire to the houses (20 burned) and the people would have died
if they had not escaped by breaking down the door to the mosque. The
hamlet had 20 village guards but they were absent that day.
98. When asked why ismet Asker and his wife said that it was soldiers
who burned their house, he replied that he stated what he had seen and
that he could not say now who set fire to it, the State or the terrorists
or whoever. But it was not the soldiers. He did not see it with his own
eyes but people told him that it was the terrorists. He saw no helicopter
arriving around this time.
Mehmet Tevfik Karaaslan
99. The witness stated that he was born in 1953. He had moved to Kulp
from islamköy in 1994 because of terrorism. He had been elected muhtar
in March 1994. He used to live in the hamlet of Gündogmaz,
4-5 kilometres from islamköy village. At the end of June 1993, he got up
in the morning at about 05.30-6.00 hours and saw smoke coming from the
centre of islamköy. He walked there. By the time he arrived the fires had
been put out. Two houses had been burned, those of ismet Asker and Keje
Selçuk. He did not see or speak to either that day. He spoke to Keje the
next day (then said ten days later) and she said that there had been a
raid during the night, when the terrorists had come and asked for help.
The terrorists burned the houses apparently when ismet and Keje did not
give them help. The PKK were after Keje's son, the imam, and she was
saying things out of fear. He did not see any soldiers in the village.
He saw ismet five to six days later and he said that the PKK had knocked
on his door in the middle of the night, that he had refused to help them
and they had burned his house.
100. This was the first occasion that houses had been burned. The PKK
came mostly by night but sometimes the witness saw them during the day.
They had taken one of Necmettin Korkmaz's nephews who was a teacher and
killed him. Necmettin was in Istanbul at the time of the burning. He was
frightened of the PKK who were after him. The PKK used the villagers and
their animals to help transport provisions up the mountain. They used to
make threats to the villagers not to go to the State authorities. They
held a meeting once or twice. Because the people did not obey them, the
PKK abducted villagers: he referred to four persons being taken. Mines
were laid on or near the road from the end of 1993 to 1995. Two of
Kazim's children had been killed by a mine near the stream.
101. He did not know of any incident 10 days later but referred to a
second raid occurring 20-25 days later. He knew of the mill but he did
not see or hear that it burned and said that it had collapsed by itself
three years previously. He did not see any helicopter coming to the
village.
102. He knew Recep Cömert, the district gendarme commander,who used to
come to the village once every two to three months. He had never been
asked to make a statement about the incidents.
Celal Seker
103. Celal Seker stated that he was 43. Before moving to Kulp in
September 1994, he used to live in Tur hamlet, one of the neighbourhoods
of islamköy about two and a half kilometres away from the centre. In the
last week of June 1993, in the morning, at dawn when he went outside, he
saw smoke. He thought it might be the PKK who were very active and at
about 09-10.00 hours he went down to the village. There were no mines at
that time and the PKK, who were active at night, cleared off before
daybreak. He saw that nothing was left of two houses belonging to ismet
Asker and Keje Selçuk. ismet Asker's house had collapsed completely and
there was a little smoke rising. He saw Fatma Asker in tears and she told
him that the PKK had burned her house. He saw Keje outside her house and
she said that the PKK had set fire to her house. All the villagers said
that it was the PKK who had set fire to the houses. Sait Memis was in the
village later that day but he did not see Karaaslan until two or three
days later. There were no soldiers in the village.
104. There were six mills in the village. Some were carried away by the
flood but the good mill was still standing and nothing had happened to
it. The Selçuk mill was on the edge of the stream, water had made holes
in the wall and it could have fallen down of its own accord. He did not
recall when Kazim's house was burned down but thought it later with all
the others. He knew Recep Cömert who was the district gendarmerie
commander. He called at the village twice, three times while on
operations. Ten or fifteen days after the incident, he came up to the
village with lots of soldiers and walked around asking whether terrorists
were coming to the village. He spoke to the witness who said that the
terrorists took their animals to carry loads. He explained that
terrorists used to bring provisions by lorry as far as the village. They
coerced villagers into giving their mules to move provisions up the
mountain to the deserted village of Yaylak or wherever they had their
camps. The PKK seized food as well. They had held a meeting in the school
and urged the villagers to help them.
105. He had never given a statement to the public prosecutor. Keje had
a son who was the official imam but who had left the village. They blamed
her for having a civil servant for a son. The PKK used to call meetings
and tell people not to go to the Republic of Turkey but to them. Maybe
the PKK were sending ismet and Fatma Asker and Keje Selçuk to make
complaints: Asker was old and deaf. Maybe he wanted to obtain some
benefit from the State.
106. The witness had previously been a village guard from 1987 to 1991.
There were no mines on the road from Tur to the village in June 1993 only
later. Necmettin Korkmaz had left the village and was in Diyarbakir; he
usually did that in the spring, leaving his wife in the village. He was
a good speaker and was under pressure from the PKK who wanted to persuade
the villagers to give them, food and money and send their children to
join them rather than do their military service. After the burning, he
took his wife and left the village.
107. The witness said the villagers were obliged to leave the village in
September 1994. There were mines on the village road, they could not tend
their livestock and the terrorists would have taken all their food and
left them hungry.
Sah Simsek
108. The witness stated that he was born in 1994. Be4ore moving to Kulp
at the end of 1994, he had lived in the central district of islamköy
village. When referred to events in 1993, he explained that he had sent
his wife and children to Diyarbakir. At nightfall he did not stay in his
house but hid in a vineyard or woodland. The village was the last stop
on the road (for the PKK). Vehicles brought provisions on the road as far
as the village and then the villagers were ordered to bring mules to be
loaded and taken up the mountains. Because he was hiding that night, he
saw nothing until dawn when he saw smoke. He followed the smoke and
found that the houses of ismet Asker and Keje Selçuk had been burned. He
arrived there at about 04-5.00 hours. No houses had been burned
previously. He saw ismet and Fatma in tears by their house. All the
villagers had gathered and were saying that it was the terrorists. While
he did not see Sait Memis there at that time, the muhtar was around the
village and he spoke to him towards evening. he saw Mehmet Tevfik
Karaaslan near ismet Asker's house in the afternoon, not early in the
morning. There were no soldiers in the village nor any helicopter that
day. Soldiers and helicopters had come on other occasions.
109. He talked to Keje Selçuk later. She said that the PKK burned her
house, that she did not understand why but wondered if they were angry
at something her son the imam had said at a meeting. Asker had told him
that the PKK were always knocking on his door and getting angry if he did
not open up. It was known that he was pro-Government.
110. The witness had been a village guard from 1987 to 1991. They gave
up being village guards when the area was evacuated and they were left
on their own to face the raids. A village guard had been seized and they
feared the same would happen again. They could see it was leading to a
bad end. There had been a meeting, which he did not go to, where the
people were gathered and told that they should send their sons to the PKK
and regard the PKK as the State, not the Turkish authorities. The imam
had refused to sign a paper agreeing with this on behalf of the
villagers.
111. He had spoken 15-20 days ago to ismet Asker who had explained that
last year when he was on his way to ask for assistance from the
authorities in City Hall, a fellow had talked to him and induced him to
tell his story, saying that he would write it down in a petition. The
petition had been written and Asker had been told to hand it in to some
place. Asker told the witness that he could not read it and that the
fellow had made it up in his own head.
112. He was told by the muhtar Karaaslan that he and the others were to
come to Ankara to give evidence.
Recep Cömert
113. Recep Cömert stated that he was born in 1954 and was currently a
senior sergeant on duty in the Mus gendarmerie. He had been in service
for 24 years. From 15 July 1991 to 3 August 1993, when he was
transferred, he was stationed as commander of the Central Kulp
gendarmerie, in charge of 60-70 gendarmes. islamköy was under his
jurisdiction and he had visited the village on three occasions, no more,
to attend meetings and carry out his duties to protect the villagers'
lives and property. He knew ismet Asker and most of the villagers. The
area around islamköy, 20 kilometres from Kulp, was under the influence
of the PKK and they were very effective there.
114. He definitely did not go to the village during the month of June
1993 and had never conducted a military operation there. There would be
logs recording any operations. The last time he was there was in May to
organise a meeting. Until he left in August 1993, the village was
inhabited and the mill still standing. He heard nothing about threats to
the villagers to leave. He had never met General Aydin, who took up his
duties there after the witness had left. He received no reports or
information relating to the burning of any houses in June 1993.
115. The PKK used the villages of the area for shelter and food. He had
no power to send troops for military operations or to evacuate villages.
They sought to persuade villagers not to assist the PKK. If from
intelligence sources they discovered the identity of any PKK supporters,
they would determine their identities, capture them and hand them over
to the judicial authorities. But they could not act on hearsay. If there
was material evidence, such as a hideout, they could proceed to take a
statement from the villagers. Neither he nor any subordinate during his
time on duty had ever burned houses or witnessed such incidents. He had
never participated in any joint large-scale operation with other units.
116. If there was a fire in a village, the muhtar or elders were unable
to report it, since they would be targeted and killed by the PKK.
Necmettin Korkmaz was not the muhtar during his time in the district: the
muhtar was Sait Memis. But Necmettin Korkmaz had the habit of visiting
the witness regularly as well as the Governor, district gendarmerie
commander and others in Kulp. He and the witness had good relations.
Korkmaz was lying when he said that he saw the witness in the village in
June. Since Necmettin Korkmaz had only seen him two or three times, he
doubted the villager could recognise him.
117. When asked why ismet Asker, his wife and Keje Selçuk said that he
had burned their houses, the witness referred to a book "The PKK" by
ismet imset, which mentions his name in connection with incidents. They
must have thought that he was a good target as his reputation had been
already damaged. He had no reason to burn their houses, or the mill,
which was a dilapidated structure partly submerged in the creek and not
in operation. The newspapers, Özgür Gündem and others, also carried
stories making untrue allegations against him. The untrue stories started
after he took up his duties at Kulp and resulted from the fact that he
performed his duties effectively and impartially. His life was in danger
as a result of the stories.
118. He had been called before a public prosecutor a few times to answer
allegations about himself. He had never been subject to disciplinary
proceedings nor been a defendant in a criminal trial.
C. Relevant domestic law and practice
119. The parties have made no separate submissions with regard to
domestic law and practice. The Commission has incorporated its summary
of the relevant domestic law and practice in the case of Akdivar and
others v. Turkey (Eur. Court HR judgment of 16 September 1996 to be
published in Reports 1996), which includes the provisions relied on by
the Government and representatives of the applicant villagers (the
applicants in this case adopt the same arguments for the purposes of this
application).
120. The Government submit that the following provisions are relevant.
121. Article 125 of the Turkish Constitution provides as follows:
(translation)
"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."
122. This 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 liability is of an absolute, objective nature,
based on a 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.
123. The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... 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."
124. The Turkish Criminal Code makes it a criminal offence
- to deprive someone unlawfully of his or her liberty (Article 179
generally, Article 181 in respect of civil servants),
- to oblige someone 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 someone'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 (Article 526 et seq.).
125. 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.
126. 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 (Articles 93 and 95 of Law 353 on the Constitution and the
Procedure of Military Courts).
127. If the alleged author of a crime is a State official or civil
servant, 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 Council of
State; a refusal to prosecute is subject to an automatic appeal of this
kind.
128. 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.
129. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
130. Damage caused by terrorist violence may be compensated out of the
Aid and Social Solidarity Fund.
131. The applicants point to certain legal provisions which in themselves
weaken the protection of the individual which might otherwise have been
afforded by the above general scheme (paras. 132-137 below):
132. Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
133. Provisional Article 15 of the Constitution provides that there can
be no allegation of unconstitutionality in respect of measures taken
under laws or decrees having the force of law and enacted between 12
September 1980 and 25 October 1983. That includes Law 2935 on the State
of Emergency of 25 October 1983, under which decrees have been issued
which are immune from judicial challenge.
134. Extensive powers have been granted to the Regional Governor of the
State of Emergency by such decrees, especially Decree 285, as amended by
Decrees 424 and 425, and Decree 430.
135. Decree 285 modifies the application of Law 3713, the Anti-Terror Law
(1981), 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. 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.
136. Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"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."
137. According to the applicants, this Article grants impunity to the
Governors. Damage caused in the context of the fight against terrorism
would be "with justification" and therefore immune from suit. Moreover,
Decree 430 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. So the
law, on the face of it, grants extraordinarily wide powers to the
Regional Governor under the state of emergency and is subject to neither
parliamentary nor judicial control. However, at the relevant time there
was no decree providing for the rehousing of displaced persons or the
payment of compensation.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
138. The Commission has declared admissible the applicants' complaints
that in June 1993 State security forces burned their homes, destroyed
their property and forced them to evacuate their village and that they
had no access to court or remedy available to them in respect of these
matters.
B. Points at issue
139. The points at issue in the present cases are as follows:
- whether there are valid applications pursuant to Article 25 (Art.
25) of the Convention;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 1 of Protocol No. 1
(P1-1) to the Convention;
- whether there has been a violation of Article 3 (Art. 3) of the
Convention;
- in the case of ismet Asker alone, whether there has been a
violation of Article 2 (Art. 2) of the Convention;
- whether there has been a violation of Article 5 para. 1 (Art. 5-3)
of the Convention;
- whether there has been a violation of Article 6 para. 1 (Art. 6-1)
of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention;
- whether there has been a violation of Article 14 (Art. 14) of the
Convention;
- whether there has been a violation of Article 18 (Art. 18) of the
Convention.
C. Concerning the existence of valid applications
140. The Government submit that the applications have not been submitted
by the applicants. The evidence shows that they were ignorant of the
contents of their applications and of what was purportedly being done on
their behalf. They point to the fact that ismet Asker stated before the
Delegates that he did not know Sedat Aslantas, who allegedly took his
statement and submit that his description of how he was brought to sign
a petition indicates that he was unaware of its purpose and destination.
Similarly, Keje Selçuk said that she did not know Sedat Aslantas who
purportedly took her statement and the discrepancies contained in that
written statement indicate that the petition was not hers but concocted
by others. Significantly, they submit, the application as initially
introduced before the Commission identified Keje Selçuk as male. The
applications are accordingly invalid, as being fabricated, produced by
influence of the PKK and obtained by deception of the applicants.
141. The Commission notes that ismet Asker did not recognise the name
Sedat Aslantas before the Delegates and that at one point he did not
understand a reference made to the Human Rights Association. However, he
confirmed that a person wrote a petition for him in an office and
referred to choosing Osman as his lawyer. This was in reference to Osman
Baydemir, a lawyer at the HRA present at the hearing before the Delegates
as a representative for the applicants. He also stated that he knew Rozan
Alicioglu, who worked for the HRA. As regards Keje Selçuk, the Commission
recalls that the applicant's lawyers from England, who are non-Turkish
speaking, explained that the error concerning her sex, was a translation
error of the materials sent to them from the HRA. While in answer to
questions by the Government Agent, Keje Selçuk also failed to recognise
Sedat Aslantas and disowned certain parts of the statement written by the
HRA as not according to what she had said, she confirmed that she went
to the HRA to make a statement and that she spoke while they wrote.
142. The Commission considers that there is no basis for finding that the
applicants did not freely go to the HRA or that the petitions submitted
on their behalf do not validly reflect their complaints. Notwithstanding
the discrepancies and apparent inaccuracies in the written petitions, the
substance of the complaints - that security forces burned their homes
and, in the case of Keje Selçuk, her mill, forcing them to leave the
village - were maintained before the Delegates by the applicants, who
showed no unwillingness or reluctance in participating in the
proceedings, the purpose of which was explained to them by the Chairman
of the Delegates.
143. Consequently, the Commission finds that the applications before it
disclose a genuine and valid exercise of the applicants' right of
individual petition under Article 25 (Art. 25) of the Convention.
Decision
144. The Commission decides, unanimously, to pursue the examination of
the applications introduced on behalf of the applicants.
D. The evaluation of the evidence
145. Before dealing with the applicants' allegations under specific
Articles of the Convention, the Commission considers it appropriate first
to assess the evidence and attempt to establish the facts, pursuant to
Article 28 para. 1 (a) (Art. 28-1-a) of the Convention. It would make a
number of preliminary observations in this respect.
i. There has been no published detailed investigation or judicial
finding of facts on the domestic level as regards the events which
occurred in islamköy village and its surrounding hamlets in the
period of June 1993 or subsequently. The Commission has accordingly
based its findings on the evidence given orally before its Delegates
or submitted in writing in the course of the proceedings; in this
assessment the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
and in addition the conduct of the Parties when evidence is being
obtained may be taken into account (mutatis mutandis, Eur. Court
H.R., Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25 p. 65 para. 161).
ii. In relation to the oral evidence, the Commission has been aware
of the difficulties attached to assessing evidence obtained orally
through interpreters (in some cases via Kurdish and Turkish into
English): it has therefore paid careful and cautious attention to
the meaning and significance which should be attributed to the
statements made by witnesses appearing before its Delegates; in
relation to both the written and oral evidence, the Commission has
been aware that the cultural context of the applicants and witnesses
has rendered inevitable a certain imprecision with regard to dates
and other details (in particular, numerical matters) and does not
consider that this by itself reflects on the credibility of the
testimony.
iii. The Government have adverted to the vulnerable position of
villagers from the South-East and to the considerable influence and
intimidation exerted on them by the PKK, who aim to undermine the
Turkish State and establish a separate state of their own and who
do not baulk at kidnapping, torture and murder. The Commission, in
light of its own increasing experience of the pressure exerted on
villagers, who face often conflicting demands from terrorists and
State authorities, sees no reason to doubt that this factor is a
relevant concern and has taken it into account in its assessment of
the evidence.
iv. In a case where there are contradictory and conflicting
factual accounts of events, the Commission particularly regrets the
absence of a thorough domestic judicial examination or other
independent investigation of the events in question. It is acutely
aware of its own shortcomings as a first instance tribunal of fact.
The problems of language are adverted to above; there is also an
inevitable lack of detailed and direct familiarity with the
conditions pertaining in the region. In addition, the Commission has
no compelling powers as regards witnesses. In the present case,
while 14 witnesses were summoned or called to appear, only 10 in
fact gave evidence before the Commission's Delegates. Significantly,
neither of two public prosecutors who were summoned appeared. At the
taking of evidence, the Government explained that the public
prosecutor from Lice had no connection with the application; they
also informed the Delegates that the public prosecutor from Kulp did
not intend to come since he had nothing to add to the material in
the case-file. The Government have failed to provide, despite
repeated requests by the Commission's Secretariat and the
Commission's Delegates, complete documentary materials relating to
records of operations and movement of security force personnel in
the Kulp district in June 1993 (see paras. 16, 20-21). The
Commission has therefore been faced with the difficult task of
determining events in the absence of potentially significant
testimony and evidence. It acknowledges the unsatisfactory nature
of these elements which highlights forcefully the importance of
Contracting States' primary undertaking in Article 1 (Art. 1) to
secure the rights guaranteed under the Convention, including the
provision of effective remedies as under Article 13 (Art. 13).
1. General background
146. The Commission notes that the village of islamköy, a community of
approximately 150 households scattered over a central area and outlying
hamlets, was situated in a mountainous region which was subject to
significant PKK terrorist activity over the period of events adverted to
by witnesses in this case. It appears that the village, due to its
geographical location, was on the route used by the PKK to bring
supplies. The villagers were obliged to lend their mules, if not assist
themselves, in carrying provisions brought by the road further up into
the mountains. The PKK also held meetings, urging co-operation by the
villagers and often called at night looking for food and contributions.
There were a number of incidents in the region, including in or about
1992 the kidnapping and killing of a teacher who was the nephew of
Necmettin Korkmaz, muhtar from the village. However, all the witnesses
were agreed that no burning or attack on the village had taken place
prior to June 1993. There had been village guards in the village but they
had given up by 1991-92, apparently due to the increased pressure and
threat from the PKK. While reference was made to mining of the roads near
the village, in particular by M. Sait Memis, it is not apparent that this
was a problem in June 1993. Celal Seker and Sah Simsek stated that it was
not a problem until later and no other witness mentioned any difficulties
as regarded leaving or returning to the village at this time.
147. The district gendarmerie forces with responsibility for the village
were based in Kulp, under the command at this time of Recep Cömert, a
senior sergeant. He was well-known to all the villagers who gave
evidence. It appears from their evidence that he came to the village with
units of security forces on a number of occasions, either to question or
search or while passing through on operations to be conducted elsewhere.
As regards the frequency of his visits, Recep Cömert stated that during
his period stationed in Kulp (15 July 1991 to 3 August 1993) he visited
the village at most three times. This is contradicted by a number of the
witnesses from the village: Fatma Asker (he had come many times before);
Nesih Selçuk (regularly, once a week/fortnight); Tevfik Karaaslan (once
every two-three months); Sah Simsek (his evidence, without mentioning
Recep Cömert, gave the impression that security forces were often in the
area). Only Celal Seker stated that he had only seen Recep Cömert on
operations twice, three times. The Commission, having regard to the
difficulties of expression, is satisfied that Recep Cömert visited the
village not infrequently and it is likely that he has understated the
number of visits carried out over a period of more than two years. The
Commission notes that Recep Cömert not only knew the muhtars of the
village, Necmettin Korkmaz and Sait Memis but admitted to knowing ismet
Asker and most of the villagers, which range of acquaintance in a 150
household village would seem remarkable if based on only a handful of
visits.
2. Events in islamköy on or about 16 June 1993
148. All the village witnesses were agreed that two houses, those
belonging to the applicants, were burned down one day in June 1993. The
evidence as to the circumstances in which this occurred, and in
particular who was responsible, differed between two groups: ismet Asker,
Fatma Asker, Keje Selçuk, Nesih Selçuk and Necmettin Korkmaz attributed
responsibility to the security forces under the command of Recep Cömert,
whereas Sait Memis, Tevfik Karaaslan, Sah Simsek and Celal Seker stated
that it was the PKK who carried out the burning.
149. The Commission has had regard to the Delegates' assessment of the
witnesses who appeared before them. The applicants' testimony was on the
whole consistent and credible, and supported in important details by the
witnesses called on their behalf. Moreover, their demeanour and
comportment were convincing and sincere.
150. The Government have pointed to apparent inconsistencies and
contradictions in the written and oral evidence submitted by and on
behalf of the applicants. For example, the list of burned property in the
purported petition submitted by ismet Asker did not accord with what he
stated at the oral hearing and his oral description of how his house was
set on fire varied: at one point, he stated that the house was on fire
before he ran in to save his belongings; at another point, he said that
it was set on fire when he was upstairs. While the written statements of
the applicants by the HRA referred to soldiers beating people, they point
out that ismet and Fatma Asker and Keje Selçuk denied in their oral
evidence that this occurred. The statement of Keje Selçuk taken by the
HRA also stated that her children were in the house at the time of the
incident whereas orally she explained that her children were grown up and
lived elsewhere. In addition, Keje Selçuk did not understand Turkish but
claimed to understand what was said to her by Recep Cömert when he burned
her house. Her descriptions of events varied from the accounts given by
Nesih Selçuk and Necmettin Korkmaz, in particular as to what occurred
when the soldiers set fire to her house.
151. Further, the Government submit that the oral testimony of
Nesih Selçuk and Necmettin Korkmaz was full of irreconcilable
contradictions. Inter alia, both claimed to see General Bahtiyar Aydin
arrive in a helicopter on an occasion when Recep Cömert was present. This
was impossible since General Aydin took up his duties in the region on
20 August 1993, whereas Recep Cömert left on transfer on 3 August 1993.
Necmettin Korkmaz also claimed, falsely, to still be the muhtar of the
village whereas Sait Memis had taken over the post by 1989. As regarded
the alleged paper warning villagers to leave ten houses, Necmettin
Korkmaz said that it was signed by Major Ali, then that it was signed by
Recep Cömert. Crucially, he also did not reveal that in fact he was not
in the village on the relevant day, but in Istanbul. These two witnesses
in addition differed on important details of the alleged burning: Nesih
Selçuk said that Recep ordered two privates to pour the gasoline on
Keje's house while Necmettin Korkmaz stated that Recep did it himself.
152. The Commission has examined the points raised by the Government.
As regards the differences between the written statements and the oral
testimonies of the applicants, it has already had occasion to comment
adversely on the accuracy of the written statements taken down in respect
of applicant villagers (see eg. Mentes v. Turkey, No. 23186/94, Comm.
Rep. 7 March 1996 para. 145, pending before the Court and Kurt v. Turkey,
No. 24276/94 Comm. Rep. 5.12.96). It considers that the differing
details do not detract from the credibility of the applicants' oral
evidence, which maintained the substance of their complaints against the
security forces.
153. In relation to the alleged inconsistencies of the applicants' oral
evidence, the Commission did not find the accounts given by the
applicants to the Delegates to be fundamentally flawed by the points
identified by the Government. As regards ismet Asker's description of how
his house was set on fire, having regard to his age and infirmity and the
traumatic nature of the incident, it is not surprising that the exact
course of events may have been confused in his mind or that he had
difficulty in conveying what occurred. His evidence was, as regarded the
central elements of his story, coherent and convincing and supported by
the testimony of his wife in many details.
154. The Commission notes that Keje Selçuk was animated and voluble in
reply to the Delegate's questions. It does not find that her claim to
have understood the Turkish of the soldiers to be inconsistent. It is
clear that she knew a few basic words, and was interpreting the gestures,
tone and context of what was being said. It finds no material discrepancy
between her account and those of Nesih Selçuk and Necmettin Korkmaz who
also claimed to be on the scene. While Keje Selçuk and Necmettin Korkmaz
stated that it was Recep Cömert who poured the gasoline whereas Nesih
Selçuk stated that he gave the order to two soldiers to set fire to the
house, it is not apparent that this is necessarily contradictory, the act
of pouring gasoline and setting alight being possibly distinct. Having
regard to the tenor of the evidence as a whole, the Commission finds that
Keje Selçuk's testimony is not discredited as alleged by the Government.
155. In respect of Nesih Selçuk and Necmettin Korkmaz, the Commission
considers that their testimony supports the applicants' complaints in
significant respects. It recalls that the Delegates found them to impress
as credible witnesses and that Necmettin Korkmaz was deeply affected by
the hardship to which he and others in the village had fallen victim
following this period. As regards the credibility of Necmettin Korkmaz
which the Government particularly challenged, the Commission recalls that
he was 79 years of age. Given that he was muhtar for 32 years, it sees
no significance in his apparent claim still to be the muhtar in 1993. In
relation to whether in fact he was present in the village, he explained
that he left for Istanbul in 1993 one or two months after the incident.
While Karaaslan claimed that Necmettin Korkmaz was in Istanbul at the
time of the burning of the two houses, Seker referred to the fact that
at that time Necmettin had adopted a peripatetic lifestyle moving to and
from Diyarbakir and that around the time of the burning, he took his
family away. The Commission is not persuaded that the statements of these
witnesses that Necmettin Korkmaz was absent are based on actual knowledge
rather than assumption or a confusion of dates.
156. Necmettin Korkmaz claimed that he witnessed the visit of
General Bahtiyar Aydin to the village on several occasions, and that one
visit occurred around the time of the burning (he was not sure of the
exact day) when Recep Cömert was also present. The Government have stated
that this allegation is impossible, since, inter alia, Recep Cömert left
his post in Kulp before the General took up his duties in the area. The
Commission requested documents and information relating to the posting
of General Aydin. The Government have provided a career record which
shows that the General, killed on active service in Lice in October 1993,
officially took up his post in Diyarbakir province on 20 August 1993 and
also copies of correspondence from the General dated 18 and 21 June 1993
from his official post in Ankara, where he was Commander of the
Gendarmerie Schools. It would therefore appear unlikely that General
Aydin was present in the village at the time immediately around the
burning of the applicants' houses.
157. The Commission has given consideration to whether Necmettin
Korkmaz's evidence on this point discloses an indication of
unreliability. The Commission notes that Nesih Selçuk merely referred to
a general, name unknown, arriving in the village on the same day as the
burning of the applicants' houses, and that he was told that this was the
general later killed in Lice. It is conceivable that Necmettin Korkmaz,
who was unsure of the date, and Nesih Selcuk, who had no personal
knowledge of the identity of the officer, are confusing the visit of
another senior officer eg. his predecessor Brigadier General Ugur Çevik,
to the village with later visits to the village by General Aydin. The
question also arises whether it was at all possible for General Aydin to
have been present in the village before Recep Cömert left the area, and
for him to have been seen by Necmettin Korkmaz who left for Istanbul one
or two months after the burning. The Commission observes that the fact
that the General took up his post officially from 20 August 1993 does not
exclude any possibility that he was involved in prior activities in the
area in a transitional period of change of command. Nonetheless, the
Commission finds the evidence of Necmettin Korkmaz, who described his
alleged meetings with General Aydin in firm detail, poses some
difficulties, which must be taken into account in the assessment of the
evidence as a whole.
158. The evidence of the applicants and the witnesses called on their
behalf was contradicted on many key points by the other witnesses from
the village heard by the Delegates. The Commission however finds the
testimony of the villager witnesses Memis, Karaaslan, Simsek and Seker
and the gendarme officer Recep Cömert to be unpersuasive and unreliable.
159. The Commission refers to the following points:
- three of these villager witnesses were from outlying hamlets at some
distance from the applicants' homes in the central village and they did
not purport to witness the incident. They gave evidence to the effect
that they saw smoke, that on visiting the village they found the houses
were burned, that there were no soldiers and that the applicants and
other villagers were blaming the PKK. The fourth, Simsek, lived in the
central village but since he slept out, in hiding, he also did not claim
to witness the burning of the house;
- the testimony of Sait Memis, the muhtar in office, was to the effect
that even though houses had been set on fire, he did not go down to the
central area for two days: this was despite the duties incumbent on his
office and the fact that this was the first incident of this kind. He
explained this was due to a fear for his life. It nonetheless appeared
that there was no particular risk from mines at that time as he alleged
(children in particular were crossing to and from the village without
restriction) and other villagers - Seker and Karaaslan - claimed that
they went to have a look without concern, taking the view that the PKK
were active at night and left at daybreak;
- the testimony of Sait Memis, as regarded events in June 1993, appeared
coloured by the traumatic events which he had experienced later on in or
about April 1994, when the PKK attacked his hamlet Tur in considerable
force, burning the houses and locking the people in the mosque from which
they escaped by breaking down the door. He demonstrated an understandable
antipathy for the PKK and was pre-occupied with threats to his own life
and the effect on the villagers of the activities of the terrorists.
160. The Commission notes that the gendarme officer, Recep Cömert, named
by the applicants and other witnesses as having personally ordered and
participated in the burning of their homes and property, denied these
allegations, stating that he was not in the village in June 1993. He also
stated that his last visit to the village had been in May 1993, yet was
able to give evidence that in August 1993 the mill was still standing.
At another point he said that the mill was dilapidated, partly submerged
in the creek and not in operation. Further, two witnesses, Sait Memis and
Celal Seker, who otherwise supported his denial of involvement, stated
that he had called at the village about ten days after the applicants'
houses were burned and talked to villagers. He also stated that he had
received no report or information about the burning of houses in the
village, although Sait Memis as the muhtar in office at the time stated
that he made the journey to Kulp where he reported the incident to the
district governor and that he reported the burning of the houses to the
district gendarmes, and Recep Cömert in particular. When referred to the
testimony of Necmettin Korkmaz, Recep Cömert stated at one point that the
old muhtar had visited him frequently, informing him about the village
and that they had a good relationship; later, he stated that Necmettin
Korkmaz had only seen him on two or three occasions and he did not
believe that Necmettin Korkmaz would recognise him. The Commission
recalls Recep Cömert's apparent understatement as regards his contacts
with the village (para. 147) and finds that his response to questioning
was, to say the least, guarded and evasive. The extracts of the duty log
of Kulp gendarme station provided by the Government, relating to routine
duties, are not inconsistent with testimony of the applicants and their
witnesses. The extracts do not establish that Recep Cömert was involved
in other duties or in other locations on the dates on which the incidents
in the village occurred. It is also unlikely that operations of the scale
alleged would be recorded in the duty log but would be detailed in
separate operation reports.
161. The Commission has considered the submissions of the Government,
supported variously by the testimony of Recep Cömert, Sait Memis,
Karaaslan, Seker and Simsek as to why the applicants and their witnesses
would lie as regards the circumstances of the burning and why it must
have been the PKK who in fact burned their property. It recalls that
Recep Cömert alleged that he had become a target of PKK propaganda and
had been blamed, falsely, for various outrages because of his role as an
official of the State who carried out his duties effectively. It is also
argued that Keje Selçuk was a target for the PKK since one of her sons
is an imam, while ismet Asker would have been punished by the terrorists
because his son was doing his military service. Both applicants, and
their witnesses it is alleged, are under pressure from the PKK to lie to
the Commission to support PKK propaganda about the State or are seeking
to obtain financial benefits from their allegations.
162. The Commission does not doubt that the PKK are capable of
retaliating against persons who appear to be co-operating with the State.
Also, it is not disputed that the PKK did make attacks in the area,
burning down about 20 houses in the Tur hamlet the following year.
Nonetheless, ismet Asker and Keje Selçuk, who are "pro-Government", have
maintained that it was the security forces who burned their property in
retaliation for alleged assistance to the PKK. In that regard, while both
were reluctant to admit to have had any contact with the PKK who used to
visit the village, the Commission recalls that ismet Asker lived in an
exposed position on the road used by the PKK at night and his wife
admitted being compelled to give them any food which they asked for. The
Commission finds no indication that their accusations against the
security forces have been fabricated under fear or intimidation of this
organisation, or for the purpose of obtaining compensation. It notes that
ismet Asker complained to the district governor in Kulp within ten days
of the burning (see petition dated 25 June 1993) that his house and
property had been destroyed in an operation, more detailed allegations
being recorded in the HRA statement of 14 July 1993, less than a month
later. Keje Selçuk's complaints against the security forces were also set
down in a statement by the HRA on 14 July 1993, within a month of
events. As regards ismet Asker's petition to the Governor, the
Commission recalls that the Government reject this as fabricated since
there is no record of such petition being registered nor was ismet Asker
able to give a registration number. The Commission would comment, in
light of other applications (see eg. Eur. Court HR Akdivar and others v.
Turkey judgment 16.9.96 to be published in Reports 1996, para. 20), that
it cannot be excluded that the district governor failed to process ismet
Asker's petition in any formal manner.
163. Having regard to the evidence as a whole, the Commission accepts the
evidence of the applicants as regards its principal elements. It does not
find the difficulties as regards certain details presented by the
testimony of the applicants and their witnesses to materially undermine
their credibility and reliability, which its Delegates assessed in
generally positive terms. It finds the following facts to be established:
164. Early on the morning of 16 June 1993, a large force of gendarmes
arrived in the village of islamköy. A number of gendarmes, under the
apparent command of Recep Cömert, went to ismet Asker's house. The house
was set on fire, causing the destruction of the property and most of its
contents. ismet Asker and his wife ran inside the house in an attempt to
save some of their possessions: this occurred either just before or while
the gendarmes were setting fire to the house by pouring petrol or
gasoline on to it. It is not established that the house was set on fire
after ismet and Fatma Asker had gone into the house. ismet and Fatma
Asker were forced to leave the house due to the smoke and flames.
Villagers came to see what was happening and were prevented from trying
to put the fire out. A number of gendarmes, including Recep Cömert,
proceeded to the house of Keje Selçuk. Despite her protests, gasoline was
poured on her house, which was set on fire, by or under the orders of
Recep Cömert. Villagers, including Necmettin Korkmaz and Nesih Selçuk,
were prevented from trying to put out the fire. Keje Selçuk's house and
its contents were completely destroyed.
165. ismet Asker and his wife left the village briefly and returned about
10 days later. Keje Selçuk had spent the night or several nights in the
village and then left to stay in Diyarbakir with her daughter. On or
about 26 June 1993, a force of gendarmes arrived in the village; they
were seen on the road near the village and inside the village. The mill
belonging to Keje Selçuk, Nesih Selçuk and others, which stood on a creek
in the village, was set on fire and destroyed. Recep Cömert was seen with
the gendarmes at the mill when this occurred. ismet Asker complained of
the destruction of his home to the district governor in Kulp, presenting
a petition. No steps were taken in response to this petition.
166. Following these events, ismet Asker and his wife moved to live
permanently in Diyarbakir as did Keje Selçuk. The village itself was
abandoned completely by the end of 1994 due to increased PKK activity.
E. As regards Article 8 (Art. 8) of the Convention and Article 1 of
Protocol No. 1 (P1-1)
167. Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others."
168. Article 1 of Protocol No. 1 (P1-1) provides:
"Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest
or to secure the payment of taxes or other contributions or
penalties."
169. The applicants allege that the destruction of their homes by the
security forces and their arbitrary expulsion from their village
constitute violations of the right to respect for their family life and
home, ensured by Article 8 (Art. 8) of the Convention, and disclosed an
interference with the peaceful enjoyment of their possessions, contrary
to Article 1 of Protocol No. 1 (P1-1).
170. The Government maintain that the applicants' allegations against the
security forces are fabricated.
171. The Commission recalls its findings of fact above (para. 164 above)
to the effect that the security forces deliberately destroyed the homes
and property of the applicants, necessitating their moving away from
their village. It finds that this discloses a very serious interference
with the applicants' rights under the above provisions for which no
justification has been given.
CONCLUSIONS
172. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention.
173. The Commission concludes, unanimously, that there has been a
violation of Article 1 of Protocol No. 1 (P1-1).
F. As regards Article 3 (Art. 3) of the Convention
174. The Commission will now examine whether the interference with the
applicants' home and private and family life was so serious that it also
amounted to a violation of Article 3 (Art. 3) of the Convention, which
provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
175. The applicants allege that their forced expulsion from their
village, inflicted in the circumstances surrounding the incident, caused
them such severe physical and mental suffering as to constitute inhuman
and degrading treatment contrary to Article 3 (Art. 3) of the Convention.
They refer to the systematic terrorising of villagers and destruction of
villages as a form of collective punishment which is inhuman and
degrading.
176. The Government contend that the allegation is wholly groundless on
the facts, as there were no security operations in the village as
alleged.
177. The Commission recalls its findings above (paras. 164-166). It
considers that the burning of the applicants' homes in their presence
constituted an act of violence and deliberate destruction in utter
disregard of the safety and welfare of the applicants who were deprived
of most of their personal belongings and left without shelter and
assistance and in circumstances which caused them anguish and suffering.
It notes in particular the age and infirmity of the applicant ismet Asker
and the traumatic circumstances surrounding the burning, in which ismet
Asker and his wife were in danger from smoke and flames as they tried to
save their belongings. It recalls that Keje Selçuk pleaded with the
gendarmes, Recep Cömert responding insultingly and pushing her. The
Commission has also had regard to the difficult personal situation in
which the applicants subsequently found themselves, being deprived of
their own homes in their village and the livelihood which they had been
able to derive from their gardens and fields, and in the case of Keje
Selçuk, the mill of which she was a co-owner. It accordingly finds that
the applicants have been subjected to inhuman and degrading treatment
within the meaning of Article 3 (Art. 3) of the Convention.
CONCLUSION
178. The Commission concludes, by 27 votes to 1, that there has been a
violation of Article 3 (Art. 3) of the Convention.
G. As regards Article 2 (Art. 2) of the Convention
179. The applicant ismet Asker has invoked Article 2 (Art. 2) in that the
security forces knew that he was in the house when it was set on fire and
that this is an indication of a reckless disregard for the protection of
the right to life.
Article 2 (Art. 2) of the Convention provides, in its first
sentence:
"1. Everyone's right to life shall be protected by law."
180. The Commission recalls that it has not found it established that the
security forces set fire to the house after the applicant had run inside
(para. 164 above). It has adverted above in the context of Article 3
(Art. 3) to the traumatic circumstances of the incident where ismet Asker
at risk from smoke and flames tried to save some of his possessions. It
finds no separate element arising in the context of Article 2 (Art. 2)
of the Convention, there being no indication of any deliberate attempt
on the life of ismet Asker, or that he suffered any life-threatening
injury as a result of any recklessness or careless disregard on the part
of the security forces.
CONCLUSION
181. The Commission concludes, unanimously, that there has been no
violation of Article 2 (Art. 2) of the Convention in respect of the
applicant ismet Asker.
H. As regards Article 5 para. 1 (Art. 5-1) of the Convention
182. Article 5 para. 1 (Art. 5-1) of the Convention guarantees the right
to liberty and security of person.
183. The applicants allege that they were compelled to abandon their
homes and village in flagrant breach of the right to the exercise of
liberty and the enjoyment of security of person.
184. The Government have not addressed this aspect of the case save
insofar as they deny that any incident occurred.
185. The Commission recalls that the primary concern of Article 5 para.
1 (Art. 5-1) of the Convention is protection from any arbitrary
deprivation of liberty. The notion of security of person has not been
given an independent interpretation (cf. Nos. 5573/72 and 5670/72,
Dec. 16.7.76, D.R. 7 p. 8; No 4626/70 et al., East African Asians v. the
United Kingdom, Dec. 6.3.78, D.R. 13 p. 5).
186. In the present case, neither of the applicants was arrested or
detained, or otherwise deprived of his or her liberty. The Commission
considers that their insecure personal circumstances arising from the
loss of their homes does not fall within the notion of security of person
as envisaged by Article 5 para. 1 (Art. 5-1) of the Convention (see eg.
Akdivar and others No. 21893/93 Comm. Rep. 26.10.95 to be published in
Reports 1996).
CONCLUSION
187. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 1 (Art. 6-1) of the Convention.
I. As regards Articles 6 para. 1 and 13 (Art. 6-1,13) of the Convention
188. Articles 6 para. 1 and 13 (Art. 6-1,13) of the Convention provide
as follows:
Article 6 para. 1 (Art. 6-1)
"1. In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law ... ".
Article 13 (Art. 13)
"Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
189. The applicants allege that the arbitrary expulsion from their homes
and village was a flagrant, direct interference with their civil rights
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
They claim to have been denied an effective procedure to challenge or
resist the deprivation of their possessions. They also claim to have had
no effective domestic remedies for their various Convention claims,
contrary to Article 13 (Art. 13) of the Convention.
190. The Government contend that the applicants have failed to exhaust
local remedies. They refer in particular to the administrative courts
which have been created to deal with disputes between the individual and
the State, and which may decide in favour of persons in the position of
the applicants, awarding compensation. They have provided a large number
of administrative court decisions illustrating the application of the
principle of "social risk".
191. The Commission refers to its decision on admissibility in the
application of Keje Selçuk No. 23184/94 (see Appendix I to this Report)
where, in the context of Article 26 (Art. 26) of the Convention, it found
that the application raised identical issues to those considered by the
Commission in the case of Akdivar and others (loc. cit., decision on
admissibility, 19.10.94). In Akdivar, the Commission examined the
remedies on which the Government relied as offering effective redress but
concluded:
"...in the absence of clear examples that the remedies put forward
by the Government would be effective in the circumstances of the
present case,... that the applicants are absolved from the
obligation to pursue them."
192. While there was domestic case-law referred to by the Government
indicating that there might be a channel of complaint through the
administrative courts which could award compensation to the individual
against the State on the basis of the latter's liability to ensure the
protection of citizens from various social risks, the Commission
considered that this case-law was insufficient to demonstrate that
compensation claims were effective remedies in the emergency regions of
South-East Turkey for the destruction of homes and villages allegedly
perpetrated by security forces. The Commission recalls that the Court,
in rejecting the Government's preliminary objection in the Akdivar case,
found that proceedings before the administrative courts would not be
regarded as adequate and sufficient in respect of the applicant
villagers' complaints of destruction of their homes. In this context, the
Court referred, inter alia, to the fact that there were no examples of
compensation being paid in respect of allegations that houses had been
purposely destroyed by security forces and to the general reluctance of
the authorities to admit that this type of behaviour occurred. The Court
was further not satisfied that a determination could be made in the
course of administrative proceedings concerning their claim that their
property was destroyed by members of the gendarmerie (Eur. Court HR
Akdivar and others v. Turkey judgment of 16 September 1996 to be
published in Reports 1996).
193. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention requires effective access to court for civil claims. This
requirement must be entrenched not only in law but also in practice. The
individual should have a clear, practical and effective opportunity to
challenge an administrative act that is a direct interference with civil
rights, as in the present case (mutatis mutandis, Eur. Court H.R., de
Geouffre de la Pradelle judgment of 16 December 1992, Series A no. 253-B,
p. 43, para. 34).
194. The Commission finds that there are undoubted practical difficulties
and inhibitions in the way of persons like the present applicants who
complain of village destruction in South-East Turkey, where broad
emergency powers and immunities have been conferred on the Emergency
Governors and their subordinates. It notes that there has been no example
given to the Commission of compensation paid to a villager in respect of
the destruction of a house by the security forces nor any example of a
successful, or indeed any, prosecution brought against a member of the
security forces for any such act.
195. In the present cases, the Commission recalls that an investigation
was opened into the applicants' allegations pursuant to the communication
to the Government of the applications. The Commission asked, on repeated
occasions, for the investigation file to be provided. A relatively small
number of documents was provided. On the basis of these, it appears that
the investigation was limited and inconclusive. Enquiries were confined
to taking statements from the applicants and enquiring from the
gendarmerie if an operation had taken place in the village on 16 June
1993. No steps were taken to seek information from the alleged
perpetrators of the burning or from other villagers who might have
witnessed events. The investigation concluded on 30 November 1994 with
a decision of lack of jurisdiction. The text of the decision stated 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, concluding that since it appeared that the security
forces were involved in the course of their administrative duties,
jurisdiction lay with the administrative council. Since neither applicant
in their statements referred to a clash with the PKK and the date of the
burning was indicated by them as being in the summer of 1993 and,
further, no document in the file, or elsewhere, refers to any operations
in the village leading to damage to property, the Commission finds this
decision to be a remarkable document.
196. The Commission has not been informed of any outcome of the
proceedings before the Administrative Council which had jurisdiction
transferred to it more than three years ago. The Commission considers
that the unsatisfactory nature of the investigation processes disclosed
in these cases supports its finding that complaints that security forces
have destroyed villagers' houses do not in practice receive the serious
or detailed consideration necessary for any prosecution to be initiated.
Where the allegations concern the security forces, which enjoy a special
position in the emergency area in the south-east, the Commission
considers that it is unrealistic to expect villagers, who are in a
vulnerable and insecure position in the circumstances pertaining in that
region, to pursue theoretical civil or administrative remedies in the
absence of any positive findings of fact by the State investigatory
mechanism.
197. In the light of these considerations, the Commission is of the
opinion that the applicants did not have effective access to a tribunal
that could have determined their civil rights within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
198. Some of the applicants' Convention claims do not necessarily involve
their civil rights, and may not require a full court remedy, for example
their claim concerning the alleged forcible evacuation of their village
and relating to their subsequent personal difficulties. Positive State
action to investigate the incidents promptly, to rehouse or financially
assist these villagers, rather than passively awaiting administrative
court intervention, may have been a more appropriate response to the
applicants' plight. The question arises therefore under Article 13 (Art.
13) of the Convention whether the applicants have been afforded effective
domestic remedies for these claims notwithstanding that the violations
have allegedly been "committed by persons acting in an official
capacity". However, for the same reasons outlined above (paras. 194-196),
the Commission considers that the applicants did not have other effective
remedies at their disposal for their remaining Convention claims as
required by Article 13 (Art. 13) of the Convention.
CONCLUSIONS
199. The Commission concludes, by 26 votes to 2, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
200. The Commission concludes, by 26 votes to 2, that there has been a
violation of Article 13 (Art. 13) of the Convention.
J. As regards Articles 14 and 18 (Art. 14,18) of the Convention
201. Articles 14 and 18 (Art. 14,18) of the Convention provide as
follows:
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 18 (Art. 18)
"The restrictions permitted under this Convention to the said rights
and freedoms shall not be applied for any purpose other than those
for which they have been prescribed."
202. The applicants maintain that because of their Kurdish origin the
various alleged violations of their Convention rights were
discriminatory, in breach of Article 14 (Art. 14) of the Convention. They
also claim that their experiences represented an authorised practice by
the State in breach of Article 18 (Art. 18) of the Convention.
203. The Government have not addressed these allegations beyond denying
the factual basis of the substantive complaints.
204. The Commission has examined the applicants' allegations in the light
of the evidence submitted to it, but considers them unsubstantiated.
CONCLUSIONS
205. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention.
206. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention.
K. Recapitulation
207. The Commission decides, unanimously, to pursue the examination of
the applications introduced on behalf of the applicants (para. 144)
208. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention (para. 172 above).
209. The Commission concludes, unanimously, that there has been a
violation of Article 1 of Protocol No. 1 (P1-1) (para. 173 above).
210. The Commission concludes, by 27 votes to 1, that there has been a
violation of Article 3 (Art. 3) of the Convention (para. 178 above).
211. The Commission concludes, unanimously, that there has been no
violation of Article 2 (Art. 2) of the Convention in respect of the
applicant ismet Asker (para. 181 above).
212. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 187
above).
213. The Commission concludes, by 26 votes to 2, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 199
above).
214. The Commission concludes, by 26 votes to 2, that there has been a
violation of Article 13 (Art. 13) of the Convention (para. 200 above).
215. The Commission concludes, unanimously, that there has been no
violation of Article 14 (Art. 14) of the Convention (para. 205 above).
216. The Commission concludes, unanimously, that there has been no
violation of Article 18 (Art. 18) of the Convention (para. 206 above).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF N. BRATZA
For substantially the reasons given in my separate opinions in other
cases involving the destruction of villages in South-Eastern Turkey
(notably Akdivar and Others and Mentes and Others) I see the essential
problem in these cases is concerned not with the right of access to court
but rather with the effectiveness of the remedies available (including
court remedies) under domestic law in the particular circumstances
prevailing in that part of Turkey. While thus agreeing with the
essential reasoning of the majority of the Commission in paragraphs 194 -
196 of the Report, I voted in favour of a violation of Article 13 and
not of Article 6 of the Convention.
(Or. français)
OPINION PARTIELLEMENT DISSIDENTE DE M. I. CABRAL BARRETO
A mon très grand regret, je ne puis partager l'avis de la majorité
de la Commission en ce qui concerne la violation des articles 3 et 13 de
la Convention, et cela pour les motifs suivants :
Article 3 - A l'instar des affaires Akdivar et Mentes, je reste persuadé
que les mesures prises par les forces de sécurité, à savoir la
destruction par le feu des habitations appartenant aux requérants,
doivent être considérées dans le contexte de la situation prévalant dans
la zone, la lutte contre les membres du PKK et la tentative "d'assécher
l'eau du poisson".
Je considère ces mesures comme une sorte de sanction, les forces de
sécurité étant convaincues de l'aide apportée par les requérants au PKK
; je note à cet égard que seules les maisons appartenant aux requérants
ont été brûlées et non tout le village.
Je ne saurais donc souscrire qu'avec difficulté à l'opinion que les
mesures en cause, quoique objectivement graves, visaient l'humiliation
ou l'avilissement des requérants.
C'est pourquoi, je me borne à considérer qu'il y a eu violation des
articles 8 de la Convention et 1 du Protocole N° 1.
Article 13 - Eu égard à la constatation de violation relative à l'article
6, je ne crois pas nécessaire de me placer de surcroît sur le terrain de
l'article 13.