GÜNDEM v. TURKEY
Doc ref: 22275/93 • ECHR ID: 001-45842
Document date: September 3, 1996
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- Cited paragraphs: 0
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- Outbound citations: 2
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22275/93
ismet GÜNDEM
against
Turkey
REPORT OF THE COMMISSION
(adopted on 3 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-37) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-32). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 33-37) . . . . . . . . . . . . . . . . . . . . . 4
II. ESTABLISHMENT OF THE FACTS
(paras. 38-142) . . . . . . . . . . . . . . . . . . . . . . . 5
A. The particular circumstances of the case
(paras. 39-53) . . . . . . . . . . . . . . . . . . . . . 5
B. The evidence before the Commission
(paras. 54-123). . . . . . . . . . . . . . . . . . . . . 7
1. Documentary evidence
(paras. 54-81) . . . . . . . . . . . . . . . . . . 7
2. Oral evidence
(paras. 82-123). . . . . . . . . . . . . . . . . .11
C. Relevant domestic law and practice
(paras. 124-142) . . . . . . . . . . . . . . . . . . . .18
III. OPINION OF THE COMMISSION
(paras. 143-183). . . . . . . . . . . . . . . . . . . . . . .21
A. Complaints declared admissible
(para. 143). . . . . . . . . . . . . . . . . . . . . . .21
B. Points at issue
(para. 144). . . . . . . . . . . . . . . . . . . . . . .21
C. The evaluation of the evidence
(paras. 145-153) . . . . . . . . . . . . . . . . . . . .21
D. As regards Articles 3, 5 para. 1 and 8 of the Convention
and Article 1 of Protocol No. 1
(paras. 154-163) . . . . . . . . . . . . . . . . . . . .23
CONCLUSION
(para. 163). . . . . . . . . . . . . . . . . . . . . . .24
E. As regards Articles 6 para. 1 and 13 of the Convention
(paras. 164-175) . . . . . . . . . . . . . . . . . . . 25
CONCLUSIONS
(paras. 174-175) . . . . . . . . . . . . . . . . . . . 26
F. As regards Article 18 of the Convention
(paras. 176-179) . . . . . . . . . . . . . . . . . . . .26
CONCLUSION
(para. 179). . . . . . . . . . . . . . . . . . . . . . .27
H. Recapitulation
(paras. 180-183) . . . . . . . . . . . . . . . . . . . .27
PARTLY DISSENTING OPINION OF MRS. G.H. THUNE
AND MR. N. BRATZA . . . . . . . . . . . . . . . . . . . . . . . . .28
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .29
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 applicant is a Turkish citizen who was resident in Kaniye
Meheme, a neighbourhood of Sarierik village in the Hazro district of
the province of Diyarbakir. He was born in 1955. He was represented
before the Commission by Mr. K. Boyle and Ms. F. Hampson, both teachers
at the University of Essex, England.
3. The application is directed against Turkey. The respondent
Government were represented by their Agent, Mr. A. Gündüz.
4. The applicant alleges that his home and possessions were severely
damaged in the course of attacks conducted by State security forces and
village guards on 7 January and 13 February 1993 as a result of which
he had to leave his home. The applicant invokes Articles 3, 5, 6, 8,
13 and 18 of the Convention and Article 1 of Protocol No. 1.
B. The proceedings
5. The application was introduced on 7 July 1993 and registered on
19 July 1993.
6. On 11 October 1993, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 10 March 1994
after an extension of the time-limit fixed for this purpose. The
applicant replied on 4 May 1994. The applicant submitted further
information on 14 September 1994.
8. On 9 January 1995, the Commission declared the application
admissible.
9. On 16 January 1995, the Government submitted further information
and observations.
10. The text of the Commission's decision on admissibility was sent
to the parties on 19 January 1995 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 they might wish to put
before delegates.
11. The Government submitted further observations on 29 March 1995
after an extension of the time-limit fixed for this purpose.
12. On 20 May 1995, the Commission decided to take oral evidence in
respect of the applicant's allegations. It appointed three delegates
for this purpose: Mr. H. Danelius, Mr. B. Conforti and Mr. J. Mucha.
It notified the parties by letter of 22 May 1995, proposing certain
witnesses and requesting the Government to identify a member of the
security forces and a public prosecutor. The Government were also
requested to provide the contents of the investigation file of the
public prosecutor involved in investigating the alleged incidents.
13. By letters of 23 June 1995, the applicant's representatives
submitted comments on the Government's further observations of
29 March 1994 and requested two further witnesses to be heard. They
indicated that at the present time they were unable to provide the name
of the second proposed witness.
14. By letter of 3 July 1995, the Commission's Secretariat requested
the Government to provide the outstanding information with regard to
the identities of the relevant witnesses and the contents of the
investigation file. On the same date the applicant's representatives
were requested to submit the name of the second witness proposed by
them and the address of the applicant and the witnesses proposed by
them.
15. The parties were reminded by letter of 31 July 1995 of the
Commission's Secretariat of the information and documents still
outstanding.
16. On 5 September 1995, the applicant's representatives informed the
Commission of the applicant's address and stated that they had been
unable to identify the second witness they had requested to be heard.
17. By letter dated 7 September 1995, the Commission's Secretariat
urgently requested the Government to provide the outstanding documents
and to identify two witnesses.
18. By letter dated 11 September 1995, the Government provided the
name of the member of the security forces and the names of three public
prosecutors who had been involved in the investigation of the alleged
incidents.
19. On 15 September and 24 October 1995, the Commission's Secretariat
again urgently requested the Government to provide the contents of the
investigation file.
20. By letter dated 30 October 1995, the Government submitted a copy
of the investigation file.
21. By letter dated 31 October 1995, the Government requested that
two further witnesses be heard.
22. On 1 November 1995, the applicant's representatives notified the
Commission that because of fear for reprisals the applicant did not
find it possible to attend the hearing. They added that they had asked
the applicant to provide an explanation for his absence in writing.
23. By letter dated 2 November 1995, the Government requested that
three further witnesses be heard.
24. Evidence was heard by the Delegates of the Commission in
Diyarbakir on 7 and 8 November 1995. For health reasons, one of the
Delegates, Mr. Mucha, was not able to attend the hearing of all
witnesses. Before the Delegates the Government were represented by
Mr. A. Gündüz, Agent, assisted by Mr. T. Özkarol, Mr. A. Sölen,
Mr. A. Kaya, Mr. A. Kurudal, Ms. N. Erdim and Mr. A. Kaya. The
applicant, who did not appear himself, was represented by Mr. K. Boyle,
counsel, assisted by Ms. A. Reidy, Mr. O. Baydemir and Ms. D. Deniz
(interpreter).
25. On 2 December 1995, the Commission decided to take further
evidence in the case in Strasbourg. The applicant would be heard on
that occasion as well as other witnesses who had not appeared at the
earlier hearing. The new hearing was to take place on 7 and
8 March 1996.
26. The parties were informed of the decision to hold a further
hearing by letter of 12 December 1996. The applicant's representatives
were requested to confirm in writing that the applicant would attend
this hearing.
27. By letter of 10 January 1996, the applicant's representatives
informed the Commission that the applicant would not attend the hearing
since he did not have a passport and was being sought by police.
28. On 16 January 1996, the parties were requested to inform the
Commission whether in view of these circumstances they nevertheless
wished to hear the remaining witnesses.
29. On 20 January 1996, the Commission decided not to maintain the
hearing of further witnesses if the parties had not responded to the
request of 16 January 1996 before the expiry of the time-limit fixed
for that purpose. It also decided that in that event the parties should
be invited to present their written conclusions on the merits of the
case.
30. No reply to the request of 16 January 1996 was received from the
parties before the expiry of the time-limit.
31. On 11 March 1996, the applicant submitted his final observations
on the merits. No final observations on the merits were received from
the Government.
32. 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
33. 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.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
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
34. The text of this Report was adopted on 3 September 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.
35. 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.
36. The Commission's decision on the admissibility of the application
is annexed hereto as an Appendix.
37. 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
38. The facts of the case, particularly concerning events in or about
7 January and 13 February 1993, are in dispute between 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 presented before Delegates. 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 Sarierik
a. Facts as presented by the applicant
39. The various accounts of events as submitted in written and oral
statements by the applicant are summarised in Section B below. The
version as presented in the applicant's final observations on the
merits is summarised here.
40. The applicant lived in the Kaniye Meheme neighbourhood of the
village of Sarierik, in the Hazro district of the province of
Diyarbakir in South-East Turkey. In this neighbourhood, which consisted
of approximately fifteen households, the applicant's family owned
eleven houses, seven of which were occupied at the relevant time. The
incidents of which the applicant complains occurred at a time when the
Sarierik village did not have village guards, the applicant's family
also having refused to become village guards.
41. In the first incident on 7 January 1993, soldiers and village
guards from the villages of Kirmatas and Mesebaglar came and gathered
villagers from the Kaniye Meheme neighbourhood together in one place.
They beat some of the villagers and then searched the houses. When they
entered the houses they destroyed some of the property and household
goods inside and mixed up the winter provisions. When they left the
houses they sprayed them with bullets, breaking the windows of the
houses.
42. In the second incident, on 13 February 1993, the soldiers and
village guards came to the neighbourhood and while the soldiers
surrounded the neighbourhood the village guards shot at the houses for
around twenty minutes. The applicant was able to hear the village
guards and the soldiers communicating by walkie-talkie. They targeted
the Gündem house in particular. During the attack the women and
children were caught in the houses and had to lie down on the floor to
take cover. The men had tried to hide outside the houses. During this
attack the applicant's house was severely damaged.
43. The applicant and his family left the village soon after these
events in the beginning of March 1993. They now live in Diyarbakir.
44. A number of houses belonging to the applicant's family in the
Kaniye Meheme neighbourhood, but not his house, were subsequently
destroyed by fire in the summer of 1993, apparently as a result of a
raid by the PKK. At that time, villagers in the main part of the
village of Sarierik had become village guards.
45. The targeting of the houses of the applicant's family is
consistent with the State practice of evacuating those villages and
hamlets where the villagers have refused to accept the village guard
system.
b. Facts as presented by the Government
46. The Government have not presented any written submissions on the
merits regarding the assessment of the oral evidence and other material
before the Commission. In their observations on the admissibility of
the application and in their further observations submitted on 29 March
1995, the Government stated as follows concerning the facts of the
case.
47. Between 7 and 13 February 1993, security forces were in operation
in the village of Sarierik. The operations were aimed at impeding the
activities of the militants from the PKK, maintaining order and
protecting the villagers and their property.
48. A number of houses belonging to relatives of the applicant were
burned in a terrorist attack six or seven months later than the
incidents complained of. The day after this incident the security
forces arrived at the village to investigate the attack.
2. Proceedings before the domestic authorities
49. Following the communication of this application by the Commission
to the respondent Government on 11 October 1993, the Ministry of
Justice (International Law and External Relations General Directorate)
contacted the chief public prosecutor's office in Hazro through the
chief public prosecutor's office in Diyarbakir on 17 December 1993,
informing them of the complaints made by the applicant.
50. On 18 May 1994, a decision of non-jurisdiction was issued by a
public prosecutor at Hazro, Ekrem Bakir, and the investigation was
referred to the Hazro District Administrative Council in accordance
with Article 15 para. 3 of the Prevention of Terrorism Act No. 3713.
51. By letter of 31 August 1994, the Ministry of Justice
(International Law and External Relations General Directorate)
requested the Diyarbakir Chief Public Prosecutor to proceed with the
investigation since the provision on which the decision of non-
jurisdiction of 18 May 1994 was based had been declared
unconstitutional by the Constitutional Court on 31 March 1992. On 21
October 1994, the Hazro Administrative Council returned the
investigation file to the chief public prosecutor's office in Hazro.
52. Having taken statements from five persons on 17 November 1994
(Kasim Tatli, Esref Güç, ibrahim Türkoguz, Musa Can and Yusuf Yasa),
a public prosecutor at Hazro, Muhittin Çiçek, on 2 February 1995,
issued a decision of non-jurisdiction and referred the investigation
to the Hazro District Administrative Council in accordance with
Article 4 para. 3 sub (i) of the Decree No. 285.
53. It appears that the proceedings before the Hazro District
Administrative Council have not yet been concluded.
B. The evidence before the Commission
1. Documentary evidence
54. The parties submitted various documents and newspaper articles
to the Commission. The documents included the Human Rights
Watch/Helsinki report "Forced Displacement of Ethnic Kurds from
Southeastern Turkey" (October 1994), extracts from the Kurdish Human
Rights Project report "Village Evacuations and Destructions in
Southeast Turkey", and statements from the applicant and witnesses
concerning their version of the events in the case.
55. The Commission had regard to the following documents:
a. General reports and official documents
i. Report entitled "Forced Displacement of Ethnic Kurds from
Southeastern Turkey", Human Rights Watch/Helsinki, October 1994
56. This report indicates that the motive for the burning of villages
described in the report was the refusal of the villagers to join the
village guard system. It contains an interview with a villager who
states that soldiers threatened to burn his village if its inhabitants
did not become village guards.
ii. Extracts from the report entitled "Village Evacuations and
Destructions in South East Turkey" and Appendix I "The Village
Guards", Kurdish Human Rights Project, undated
57. The author describes the persecution of villagers and families
who refuse to become village guards. Several incidents are reported
where villages were evacuated as a result of the villagers' refusal to
join the village guard system.
iii. Report of 22 June 1994 from the Hazro District Gendarme
Command to the Office of the Hazro District Governor
58. This report appears to have been drawn up following a request for
information from the Office of the Hazro District Governor of
31 May 1994.
59. It states that the Station Command did not carry out any
operation on either 7 January or 13 February 1993 in Sarierik village
or the neighbourhood of Kaniye Meheme. The applicant and the other
residents of the neighbourhood were not maltreated or told to evacuate.
60. According to the report, the applicant and his relatives
regularly complained of the arrest and disappearance of the applicant's
brother, ibrahim. However, custody records showed that the applicant's
brother had not been in custody in September 1991. An investigation
into these complaints had been conducted.
61. The report further states that the applicant had previously been
imprisoned for having grown Indian hemp. Following his release on
5 August 1992, he left his village and had been in contact with the PKK
terrorist organisation. He had been seen accompanying members of this
organisation and had attended an ambush carried out by the PKK on
Sarierik village.
iv. Decision of non-jurisdiction of 2 February 1995
62. This decision, issued by a public prosecutor at Hazro, Muhittin
Çiçek, lists the Hazro security forces and village guards as being
suspected of ill-treatment and causing financial losses. It refers to
the complaints made by the applicant that the security forces and
village guards, on 7 January and 13 February 1993, had beaten up
residents and damaged houses and belongings in the village of Sarierik.
It concludes that pursuant to Decree No. 285 the investigation should
be referred to the Office of the Hazro District Governor.
b) Statements by the applicant
i. Statement dated 15 March 1993 taken by Abdullah Koç of the
Diyarbakir branch of the Human Rights Association
63. On 7 January 1993, security forces and village guards carried out
a raid on the fifteen household neighbourhood of Kaniye Meheme. The
residents were beaten up and sworn at. The houses were shot at with
heavy weapons, resulting in the breaking down of doors and the
shattering of windows. All the winter provisions stored within the
houses were mixed up, rendering them inedible. Many household goods
were destroyed.
64. On 13 February 1993, security forces and village guards again
carried out a raid on the neighbourhood, threatening the villagers with
demolition of the village if they did not evacuate it.
65. The applicant's brother, ibrahim, has been missing since
September 1991, when he was taken into custody at the headquarters of
the Hazro gendarme station commander, Kenan Sahin.
ii. Statement made on 28 May 1994 and recorded on 31 May 1994 by
Mahmut Sakar of the Diyarbakir branch of the Human Rights
Association
66. The first raid, which was carried out by approximately 200
soldiers and 150 village guards, took place around 10.30 hours on
7 January 1993. During the raid, the security forces gathered the
villagers in one place. They beat some of the villagers and verbally
abused and swore at others, including children. They used heavy weapons
to shoot at the houses. They broke down doors and windows and mixed up
all the winter provisions, which became inedible. They also destroyed
household goods in a number of houses. Before they left, they stated
that if they found the villagers there when they came a second time
they would burn the village.
67. The second raid commenced around 05.00 hours on 13 February 1993,
when soldiers and village guards approached the village while shooting
in the air. At the sound of the gunshots, the men went outside and hid
near the houses. The applicant's family took care to hide the applicant
first, since he had previously made statements to the press and other
organisations concerning the disappearance of his brother ibrahim in
which he had accused the Gendarme Commander Kenan Sahin.
68. The soldiers did not enter the village but surrounded it.
Approximately fifty village guards entered the village and fired at the
houses for about twenty minutes. Most of the women and children, having
been unable to flee, lay on the floor of the houses to protect
themselves. When the village guards stopped firing, they took the women
and children out of the houses which were then destroyed. Some of the
women and children were beaten with fists and rifle butts.
69. The men who were hiding outside during the shooting were able to
overhear the communications taking place by walkie-talkies between the
village guards and the soldiers. From these conversations it appeared
that the houses of the applicant's family were targeted in particular.
70. The doors and the windows of the applicant's house were broken
and the interior destroyed. The damage could have been repaired but the
applicant has been too afraid to return. Following their departure, it
has been impossible for the villagers to harvest their vineyards and
fields.
71. The Government dispute the authenticity of this statement since
it does not bear the signature of the applicant.
c) Statements by other persons
i. Kasim Tatli
Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro
public prosecutor
72. Tatli is the mayor of Sarierik village. Around the dates
specified in the application, terrorists very often used to carry out
ambushes. At that time, there were no village guards in Sarierik. One
day in the beginning of 1993, some 200 terrorists passed Sarierik and
headed towards Mesebaglar. They ambushed Mesebaglar in the evening and
a clash with village guards ensued. The next day, some members of the
Hazro security forces passed Sarierik towards Mesebaglar in order to
record the damage and capture the terrorists at large. The applicant's
house was not burned on this occasion but about six to seven months
later in June or July 1993 when terrorists again ambushed Mesebaglar.
During the armed conflict which ensued fire and smoke had been seen to
come out of the Kaniye Meheme neighbourhood and the next day it was
discovered by the inhabitants of Sarierik that three or four houses in
Kaniye Meheme, all belonging to the applicant's family, had burned
down.
73. The villages in the area were often ambushed and houses were
burned down by terrorists to threaten the inhabitants. Tatli has never
seen or witnessed the security forces and the village guards damaging
residential property.
ii. Esref Güç
Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro
public prosecutor
74. Güç is a member of the Sarierik village council of elders and
lives in the Kaniye Meheme neighbourhood. On the dates specified in the
application, no houses were burned down in the neighbourhood. No ambush
was carried out by security forces and village guards on Kaniye Meheme
in January-February 1993. At that time, the village had no village
guards. Güç has never seen or witnessed any of the security forces or
village guards coming to the neighbourhood, burning the houses or
beating up or intimidating the residents.
75. When he returned to the neighbourhood in June or July 1993, after
having harvested his tobacco crop, he saw that three or four of the
applicant's houses had burned down. He found out that an armed conflict
had taken place in Mesebaglar and that the houses had been burned down
in the course of this incident. The following day, security forces
arrived in the neighbourhood to examine the incident.
iii. ibrahim Türkoguz
Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro
public prosecutor
76. Türkoguz was a member of the Sarierik village council of elders
on the dates specified in the application. He resides in the
neighbourhood of Kaniye Meheme. He did not witness any activity carried
out by the security forces or the village guards on the date claimed
by the applicant or at any other time. The applicant's house was not
burned at that time but about six or seven months later. One night,
Türkoguz heard shooting coming from outside. Being afraid of terrorists
he did not go out. In the morning he saw that the applicant's and his
brothers' houses were burning. He does not know who set the houses on
fire. At that time, the village had no village guards but security
forces and other village guards sometimes visited the village. The day
following the burning of the houses, the security forces came to
examine the incident.
iv. Musa Can
Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro
public prosecutor
77. Can resides in the neighbourhood of Kaniye Meheme. On the dates
specified by the applicant, Sarierik had no village guards. At that
time, the security forces and the village guards did nothing of the
sort suggested by the applicant. The applicant's houses were not burned
at that time but in the summer months of 1993 when the applicant's
relatives had already left the village. One night, three or four of the
applicant's houses were burned down. Living at the outskirts of the
neighbourhood, Can had not heard any weapons being fired. He does not
know who burned the houses or for what reason. The following day, the
security forces came to the neighbourhood to investigate the incident.
v. Yusuf Yasa
Statement of 17 November 1994 taken by Muhittin Çiçek, Hazro
public prosecutor
78. Yasa was and still is residing in the neighbourhood of Kaniye
Meheme. On the dates specified in the application, security forces and
village guards did not carry out any activity as contended by the
applicant. Security forces and village guards visited the village from
time to time. The applicant's houses were burned in the summer of 1993.
One night, Yasa heard the sounds of weapons but, being afraid of
terrorists, did not go out. The village had no village guards at that
time. The following morning, he saw that a group of houses belonging
to the applicant had been burned. He does not know who was responsible
for this. The security forces came to investigate the incident.
vi. Mahmut Demir
Statement of 24 December 1992 taken by the Human Rights
Association
79. On the morning of 22 December 1992, village guards from Kirmatas
and Mesebaglar came to Demir's village of Tepecik in the Kocaköy
district of Diyarbakir province and burned it completely.
vii. Mahmut Laçin
Undated statement taken by the Human Rights Association
80. On 17 December 1992, village guards from Kirmatas and Mesebaglar
came to Laçin's village of Tepecik and started firing indiscriminately
to revenge the death of another village guard which had occurred during
a clash between them and PKK militants. This raid on Tepecik and a
subsequent raid a few days later resulted in the loss of lives,
injuries and the burning of most of the houses and household goods.
viii. Sidik Yasar
Statement of 24 December 1992 taken by the Human Rights
Association
81. Yasar was present during the second raid conducted on Tepecik
village by village guards from Kirmatas and Mesebaglar in Hazro
district on 22 December 1992. The village guards called in security
forces and assistance teams made up of other village guards. The houses
in the village were set alight, people beaten up and livestock shot.
During a previous incident on 19 December 1992, village guards had
killed, inter alia, Yasar's wife and child.
2. Oral evidence
82. The applicant did not give evidence before the Commission's
Delegates at the hearing in Diyarbakir nor was he willing to appear at
a further hearing which the Delegates intended to be held in Strasbourg
but which was cancelled after the Commission had been informed that the
applicant would not appear. It was submitted on behalf of the applicant
that he is afraid of possible reprisals should he give evidence before
the Commission.
83. It did not prove possible to ensure the appearance of all the
other persons summoned by the Delegates to be heard during the hearing
in Diyarbakir. In particular, the public prosecutor at Hazro, Muhittin
Çiçek, who had taken statements from several villagers in the course
of the investigation into the applicant's claims and who had issued a
decision of non-jurisdiction (para. 52), was unavailable to give
evidence.
84. Furthermore, the Government objected to the hearing of Mahmut
Sakar as a witness. The Delegates nevertheless decided to hear Sakar,
and since the Government refused to attend this part of the
proceedings, Sakar was heard in the absence of the Government's
representatives. In view of the fact that they dispute the authenticity
of the statement made by the applicant on 28 May 1994 (cf. para. 71)
the Government submit that the evidence given by Mahmut Sakar cannot
be relied upon.
85. The evidence of seven witnesses heard by the Delegates may be
summarised as follows:
i. Mahmut Sakar
86. Sakar said that he was born in 1966. He is a barrister working
for the Diyarbakir Human Rights Association. He had met the applicant
after having been requested by the applicant's representatives to put
certain questions to him. Prior to that date he had not had any
particular knowledge of the application.
87. He had initially attempted to contact the applicant by telephone.
Subsequently, members of the applicant's family had come to the office
of the Human Rights Association in Diyarbakir and had said that they
would be able to answer the questions. However, he had insisted that
he wanted to speak to the applicant. The applicant had come to see him
on 28 May 1994, accompanied by members of his family. Since the
applicant had indicated that he could only stay a short while, Sakar
had made notes during the meeting and had prepared the written
statement afterwards. It was for this reason, and also because the
written statement did not contain a direct account related by the
applicant, that it was not signed by the applicant himself.
ii. Kasim Tatli
88. Tatli stated that he was born in 1963 and that he had been the
mayor of Sarierik for about seven years. A terrorist group had first
come to his village in 1992. At that stage the villagers had not known
what terrorist organisations were but from then on the PKK had made the
local people suffer enormously. They had wanted him to join their cause
but he had always refused because he was in favour of the State who had
never harmed him or his villagers. However, the terrorists had
consistently wanted to punish him for his refusal to join them. To this
end they had several times, in 1992, 1993 and 1994, abducted members
of his family and had killed one of his cousins.
89. At some stage in 1993 he and other villagers had become village
guards and had received arms, enabling them to retaliate against
terrorist raids and to remove mines laid by the terrorists. Neither the
Government nor village guards from neighbouring villages had pressured
them into becoming village guards. The village had good relations with
other villages, irrespective of whether or not the other villages had
village guards.
90. He confirmed that he knew the applicant and his family. The
applicant had been involved with the terrorists, acting as their guide.
He had spoken directly to the applicant in an attempt to persuade him
to stop terrorism, but to no avail. The applicant had furthermore
served a prison sentence before 1993 in connection with a robbery and
had always been involved in drug dealing and arms smuggling. For these
reasons the security forces had come to the village looking for the
applicant but they had never mistreated a single citizen.
91. He denied that on 7 January 1993 security forces numbering about
200, together with 150 village guards, had raided Kaniye Meheme as
alleged by the applicant. In any event, the total number of village
guards in the locality had been much smaller than 150. Asked whether
any particular event had occurred on 7 January 1993, he said that he
did not exactly remember the date but that a group of ten to twenty
village guards had come to the village to ask the applicant to stop
acting as a guide for terrorists who had conducted raids on their
village.
92. He also denied that any raid by security forces and village
guards had taken place on the village on 13 February 1993. In this
respect he initially said that at a date which he did not exactly
remember, terrorists had clashed with the security forces outside the
village but that neither the security forces nor a single village guard
had entered the village. He then went on to say that on 13 February
1993, at night, the terrorists had raided the village of Mesebaglar and
that during the clash which had ensued one terrorist had been killed.
93. The applicant's house was still standing and intact, albeit in
a poor state because of a lack of maintenance. Some other houses
belonging to members of the applicant's family had been burned in the
course of a clash following a terrorist raid on Mesebaglar in June or
July 1993. Confronted with the statement of 17 November 1994, in which
he had said that the applicant's house had not been burned in the
beginning of 1993 but in June or July 1993 (para. 72), he denied that
the applicant's house had been burned.
94. He confirmed that he had heard that the applicant's brother
ibrahim had been abducted by terrorists.
iii. Esref Güç
95. Güç said that he was born in 1964. He had lived all his life in
the Kaniye Meheme neighbourhood of Sarierik village. He was one of the
four members of the council of elders which was consulted when a
problem occurred in the village. He knew the applicant and his family;
they had four to five houses in Kaniye Meheme.
96. He denied that any raid by security forces or village guards on
the village had taken place on 7 January or 13 February 1993 or on any
other date. At that time, there had been a metre of snow and it had
been impossible to reach the village. However, terrorists had caused
damage to the village. Once, presumably in July or August 1993 when he
had not been present in the village, three houses belonging to the
applicant's family had been burned, probably by terrorists. He insisted
that he had also told this to the public prosecutor who had questioned
him on 17 November 1994 (paras. 74, 75). If the report of this
statement said that the applicant's houses had been burned, he had
referred to the houses belonging to the applicant's family. The
applicant's house was still standing and intact. It was not occupied
as the applicant had left the village to work elsewhere. He knew that
the applicant had contacts with the PKK. The applicant's father, Haci
Ahmet Gündem, had gone to Diyarbakir in March 1993 to find work.
97. It was the PKK who by their actions had forced the villagers to
become village guards. He had never been a village guard himself. There
was no enmity between villages with and villages without village
guards.
iv. Ekrem Bakir
98. Bakir stated that he was born in 1966. He had worked as public
prosecutor in Hazro from late 1993 until July 1994. He had initiated
a preliminary investigation into the applicant's allegations following
a request thereto made about a year after the alleged incidents by the
Ministry of Justice through the Diyarbakir Chief Public Prosecution
Department. He had received a copy of the applicant's statement to
Abdullah Koç (paras. 63-65). Although it had been clear to him that the
burning of houses as alleged by the applicant fell within the scope of
the law on the prosecution of civil servants, he had issued
instructions that the applicant be found in order for his statement to
be taken. In his experience, a statement taken directly from a
complainant might reveal other offences which might fall within his
jurisdiction. Furthermore, he had wanted to find out from the applicant
whether there had been any witnesses to the alleged events and whether
there was any supporting documentation. However, it had been impossible
to find the applicant.
99. When it was put to him that the applicant's statement to Abdullah
Koç did not contain the allegation that the applicant's house had been
burned, he said that there might have been some confusion with other
incidents in which houses had been burned by terrorists.
100. Apart from his attempts to locate the applicant, his
investigation had focused on the applicant's second allegation, i.e.
the disappearance of the applicant's brother ibrahim for which the
applicant had held the security forces responsible. As he had
experienced that uniforms belonging to the security forces had been
found among material discovered in terrorist shelters, he had looked
into the possibility that the applicant's brother had been abducted by
terrorists dressed in security force uniforms. During this
investigation he had found out that this matter had already been
investigated by the public prosecutor's office in 1992 and that it had
indeed been terrorists disguised as security forces who had abducted
the applicant's brother. The previous investigation had been referred
to the public prosecutor at the State Security Court for reasons of
lack of jurisdiction.
101. In view of the fact that the applicant could not be found and the
second allegation had already been investigated, he had issued a
decision of non-jurisdiction based on Article 15 para. 3 of the
Prevention of Terrorism Act No. 3713 and had forwarded the file to the
office of the District Governor. Some time later, when he had already
been transferred elsewhere, an indication from the Ministry of Justice
had been received to the effect that that particular provision had been
declared unconstitutional and the investigation had been resumed by a
different public prosecutor, Muhittin Çiçek. Muhittin Çiçek had
subsequently issued a new decision of non-jurisdiction but based on
Article 4 para. 3 sub (i) of the Decree No. 285 and the file had again
been transferred to the office of the District Governor.
102. He explained that the facilities at the disposal of the District
Governor were better than those available to a public prosecutor.
Furthermore, the gendarmerie and the police force were directly
affiliated to the District Governorship. For this reason, the office
of the District Governor was better equipped to conduct these
investigations. An investigator would be appointed by the District
Governor and, should evidence be found by this investigator, a decision
to prosecute would be taken and the file would again be forwarded to
the public prosecution department. A decision by the District Governor
not to prosecute would be communicated to the person concerned who
could lodge an appeal.
103. When shown the report of 22 June 1994 from the Hazro District
Gendarme Command (paras. 58-61), he said that this most probably formed
part of the investigation being conducted by the office of the District
Governor following his referral of the file to that office.
104. He said that he had never investigated allegations of houses
having been burned or destroyed by soldiers. In fact, he had never
received any such complaints from civilians.
v. Aydin Tekin
105. Tekin said that he was born in 1966. He had worked as public
prosecutor in Hazro from March 1993 until June 1994. Ekrem Bakir having
been in charge of the investigation into the applicant's allegations,
he would only have been involved in it when Bakir was on leave.
However, due to the considerable lapse of time he did not remember much
of what was done during the investigation. Furthermore, as a public
prosecutor he was not in a position to testify in connection with an
investigation that had been carried out. Information about this
investigation could be obtained from the file.
vi. Hasan Çankaya
106. Çankaya stated that he was born in 1964. In the beginning of
1992, he had been appointed deputy commander at the Hazro central
gendarme station. He had been put in charge of the gendarme station of
Teknebasi near Sarierik in July 1993. This station had officially
become operational on 21 September 1993.
107. He believed that the applicant's family had already left Kaniye
Meheme when he had arrived in the region, i.e. in the beginning of
1992, although they might have left at a later date. He had never met
any of the applicant's relatives in person. He remembered that one
member of the applicant's family had been on the list of wanted persons
for his membership of the PKK, but he could not remember the first name
of this person.
108. Describing the security situation in the vicinity of Sarierik,
he said that initially only two villages in the Hazro district,
Kirmatas and Mesebaglar, had had village guards. The mountain range
north of Sarierik and the areas on the Lice border had suffered from
intense terrorist activity in 1992 and 1993. At this time, terrorists
had conducted raids on Kirmatas and Mesebaglar aimed at breaking down
the village guard system almost every week. The Mesebaglar village
guards had regularly gone to the area around Sarierik to check on
possible terrorist approaches, but he thought it impossible that these
guards had conducted searches in Sarierik as part of their monitoring
and controlling activities.
109. Once the Teknebasi gendarme station had become functional,
Sarierik and the village of Kavaklibogaz had voluntarily applied to be
included in the village guard system. To his knowledge, no pressure had
been applied on the villagers in this respect. In order to eliminate
this system before it had become established, terrorists had
immediately started to attack Sarierik and Kavaklibogaz. Starting from
the date he had taken up his duties there, i.e. from July 1993, there
had been skirmishes every two weeks. After January 1994, when the
terrorists had begun to experience serious losses, they had realised
that they would not be able to take over and they had reduced the
number of raids.
110. He had not heard of any operations conducted by 200 security
force members and 150 village guards in the neighbourhood of Kaniye
Meheme on 7 January and 13 February 1993. It appeared most unlikely to
him that such a raid could have occurred, since the village had been
considered as pro-Government which was borne out by the facts that it
had adopted the village guard system and had not given up despite a
large number of terrorist attacks. Therefore, a raid as alleged by the
applicant would not have served any useful purpose. Furthermore, at
that time there had only been 70 to 80 village guards in the whole of
the Hazro district.
111. He stated that a terrorist raid had been carried out on
Mesebaglar one evening in August 1993, several weeks after he had been
posted to the area and before the Teknebasi gendarme station had become
operational. The security forces had been unable to intervene in the
clash which ensued between the terrorists and the village guards of
Mesebaglar and those of Kirmatas which had come to the assistance of
the Mesebaglar guards. After four or five hours of fighting, the
terrorists had begun to retreat to the north in the direction of
Sarierik and the Mesebaglar and Kirmatas village guards had pursued
them. The conflict had continued around Sarierik village for almost an
hour before the terrorists had retreated altogether.
112. When he had gone to Kaniye Meheme the following day, he had found
that the roofs of two houses and one barn belonging to the applicant's
family had caught fire during the clash. Some other houses had also
caught fire but since they had been occupied, the occupants had
extinguished the fire themselves. As the houses belonging to the
applicant's family had been empty, nobody had attended to them and they
had partially burned down.
113. In his opinion, the burning of the houses belonging to the
applicant's family had not been an incident of arson aimed specifically
at those houses but had been a result of houses catching fire during
the clash. He doubted that the burning of these houses had been caused
by the terrorists, since he had had information from terrorists who had
confessed to terrorist activities that the applicant's family had
helped and supported the terrorists.
114. He said that village guards were not entitled to take decisions
and implement them without prior permission of higher authorities. Only
pursuits of terrorists by village guards during a clash might occur
without authorisation having been given since such extraordinary
circumstances did not allow for the asking and granting of permission.
vii. Haci Ahmet Gündem
115. Haci Ahmet Gündem said that he was born in 1934 and that he was
the father of the applicant. He explained that the applicant had not
appeared at the hearing since he had to work, was not aware of the
hearing and was afraid that if he appeared the village guards and the
Government would make him disappear like they had done with his brother
ibrahim.
116. The whole family, including the applicant, had moved to
Diyarbakir three years ago. Although he said that this move had taken
place in 1992, he also said that the family had moved following the
events of which his son complained before the Commission. The
applicant's family had eleven houses in Kaniye Meheme, four of which
had been unoccupied at the relevant time. The applicant had also had
his own house, but he had been staying with his father.
117. He said that the PKK had never come to the village. Their houses
had been raided more than ten times a year by soldiers and village
guards from Mesebaglar and Kirmatas. During these raids the houses of
the applicant's family had been singled out. He believed that the
reason for this was a vendetta between his family and villagers from
Mesebaglar which had started seventy to eighty years previously when
his father had been involved in a fight with Mesebaglar villagers.
Although no other fights had occurred since that time, after the
Mesebaglar villagers had become village guards they had told the
soldiers that the applicant's family supported the terrorists. The
soldiers had believed them. However, the family had never assisted or
supported the PKK. They had refused to become village guards and for
this reason they had not been on good terms with the village mayor
Kasim Tatli.
118. He also said that it was because of the fact that the family had
accused the First Lieutenant Kenan Sahin of having taken away his son
ibrahim that the State had begun to pressurise the family.
119. Soldiers and village guards had searched the houses belonging to
the family once a week for guns. During one or more of these searches
they had mixed up foodstuffs and poked duvets and mattresses with
skewers.
120. He remembered one occasion during a raid when he had overheard
a walkie-talkie message from the First Lieutenant Kenan Sahin to the
effect that the applicant had to be killed like his brother ibrahim.
121. Asked about the incident in which village guards had allegedly
fired at the family's houses for twenty minutes, he said that four of
the houses had been damaged during that attack, including the house of
the applicant. It appeared that he was talking of the same incident
when he said that when the residents had heard the soldiers and village
guards approach they had sent the young children to the village above
Kaniye Meheme. He had gone to a relative's house situated on a hill
opposite Kaniye Meheme from where he could see both soldiers and
village guards shooting at the houses belonging to the family. He did
not know whether the applicant had been at home or had run away at that
time.
122. After this incident he had counted seventy bullets in front of
his house. The houses belonging to the family had been marked by
bullets fired inside and outside the houses. They had not repaired the
houses but had left the village about twenty days to a month later.
123. He had since learned from fellow villagers visiting Diyarbakir
that three of the family's houses had been burned down at a later date
by the Mesebaglar and Kirmatas village guards. The applicant's house
had not been burned down but the Sarierik village guards had taken the
doors from this house. When he had spoken to Esref Güç in Diyarbakir
about this incident the latter had said that he was too afraid of the
village guards to declare publicly that it had been they who had set
the houses on fire.
C. Relevant domestic law and practice
124. The Government have submitted that the following domestic law is
relevant to the case:
125. Article 13 of Law 2577 concerning administrative proceedings
provides that any person who has suffered damage as a result of an act
committed by the administration may request compensation from the
administration within one year of the alleged acts. In case this
request is completely or partially rejected or if no reply has been
received within a time-limit of sixty days, the person involved may
initiate administrative proceedings.
126. 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 for damage caused by its own
acts and measures."
127. 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.
128. 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."
129. The Turkish Criminal Code makes it a criminal offence:
- 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 subject someone to torture or ill-treatment (Article 243 in
respect of torture, and Article 245 in respect of ill-treatment,
inflicted by civil servants), and
- to damage another person's property intentionally (Article 526
et seq.).
130. 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.
131. 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).
132. Furthermore, from the Commission's summary of the relevant
domestic law and practice in the case Akdivar and others v. Turkey (No.
21893/93, Comm. Rep. 26.10.95, currently pending before the Court) the
following information appears (paras. 133-135).
133. If the alleged author of a criminal offence is a State official
or civil servant, permission to prosecute must be obtained from local
administrative councils. The local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
134. Any illegal act by civil servants, be it a criminal offence or
a tort, which causes material or moral damage may be the subject of a
claim for compensation before the ordinary civil courts and the
administrative courts. Damage caused by terrorist violence may be
compensated out of the Social Help and Solidarity Fund.
135. Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
136. The applicant points to certain legal provisions whose effect is
to weaken the protection of the individual which might otherwise be
afforded.
137. Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
138. 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.
139. 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.
140. 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. Contrary to the provisions contained in Law
3713, the constitutionality of Decree 285 may not be challenged.
141. 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 damages suffered by them without justification."
142. According to the applicant, 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.
Consequently, 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
143. The Commission has declared admissible the applicant's complaints
that on 7 January and 13 February 1993 village guards and State
security forces carried out attacks on his home and property and that
there were no effective domestic remedies at his disposal.
B. Points at issue
144. The points at issue in the present case are as follows:
- whether there has been a violation of Articles 3, 5 para. 1 and
8 (Art. 3, 5-1, 8) of the Convention and Article 1 of
Protocol No. 1 (P1-1);
- 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 18 (Art. 18) of
the Convention.
C. The evaluation of the evidence
145. Before dealing with the applicant's 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. The
following general considerations are relevant in this context:
i. It is the Commission's task to establish the facts, and in
doing so the Commission will be dependent on the co-operation of
both parties. In cases, such as the present one, where the
applicant claims to have been an eye-witness to the events of
which he complains, he is also an important witness in his own
case. However, the applicant did not appear before the
Commission's Delegates to give evidence. Whatever the reasons for
his failure to appear may have been, it is clear that his absence
from the proceedings affects to a considerable extent the
possibilities of the Commission to establish the facts beyond
reasonable doubt.
ii. There has been no detailed investigation on the domestic
level as regards the events which allegedly occurred in the
Kaniye Meheme neighbourhood on 7 January and 13 February 1993.
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.
iii. In relation to the oral evidence, the Commission has been
aware of the difficulties attached to assessing evidence obtained
orally through interpreters (in one case 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 written and oral evidence, the
Commission has been aware that the cultural context of the
applicant and the 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.
146. The applicant alleges that security forces and village guards
from Mesebaglar and Kirmatas severely damaged his house and property
on 7 January and 13 February 1993 as part of a Government policy to
burn and evacuate houses or villages whose inhabitants refuse to accept
the village guard system. The Government deny that these events took
place.
147. The Commission notes that the applicant's account of a Government
policy in respect of villagers refusing to become village guards is
supported by findings contained in the reports of Human Rights
Watch/Helsinki and the Kurdish Human Rights Project (paras. 56, 57).
The Commission further notes that other applications which have been
brought before it also contain allegations of raids being conducted on
villages and that statements have been invoked which refer to other
raids by the Mesebaglar and Kirmatas village guards (paras. 79-81).
148. However, as regards the evidence obtained in respect of the
specific events which are alleged to have happened in this case, it is
only the oral testimony of the applicant's father, Haci Ahmet Gündem,
which provides support for the applicant's account of events, despite
the fact that this testimony was rather unclear as to details and
timing. However, Haci Ahmet Gündem did not say that the houses
belonging to the applicant's family were destroyed because the family
members had refused to become village guards. He put forward two
different reasons: firstly, there existed an old vendetta between the
applicant's family and Mesebaglar villagers and the latter had told the
security forces that the applicant's family supported the PKK
(para. 117). Secondly, the applicant's family had accused a member of
the gendarmerie of being responsible for the disappearance of the
applicant's brother ibrahim (para. 118). The Commission finds that the
applicant's appearance before the Delegates would have been required
to clarify these matters.
149. Although the other evidence suggests that the area around
Sarierik was the scene of frequent clashes between terrorists and
security forces or village guards, it offers no support for the
applicant's allegations. On the contrary, several witnesses denied that
any houses in Kaniye Meheme had been destroyed by security forces and
village guards. In this respect the Commission recalls, inter alia, the
statements of Kasim Tatli and Esref Güç to a public prosecutor (Tatli
para. 73, Güç para. 74) and their oral testimony before the Delegates
(Tatli paras. 91, 92, Güç para. 96). A number of witnesses did agree
that some houses belonging to the applicant's family had burned down
following a clash which had started in Mesebaglar in the summer of
1993, but none of these witnesses suggested that this had occurred as
a result of a deliberate action by security forces or village guards.
The Commission refers to the statements of Kasim Tatli and Esref Güç
to a public prosecutor (Tatli para. 72, Güç para. 75), their oral
testimony (Tatli para. 93, Güç para. 96) and the oral testimony of
Hasan Çankaya (paras. 111-113).
150. The Commission thus notes that it has been presented with
diverging versions of whether and how the applicant's house and
property were damaged. The applicant was summoned on two occasions to
appear before the Commission's Delegates to give evidence. On the first
occasion he failed to appear. On the second occasion he informed the
Commission that he would not appear which resulted in the hearing being
cancelled. He explained his failure to appear by referring to his fear
of adverse consequences for himself if he should appear before the
Delegates. The Commission feels concern about this explanation but is
unable to determine whether or to what extent such fear may have been
justified.
151. Whatever reason there may have been for the applicant's absence,
the Commission finds that his failure to give evidence made it
difficult to establish the facts. It would have been necessary, in
order to make a reliable assessment of the situation, to hear the
applicant in person in order to assess his general credibility and to
put questions to him about various details, including the background
of the events.
152. For these reasons the Commission is of the opinion that it has
not been established beyond reasonable doubt that the applicant's house
and property were damaged by security forces and village guards on 7
January and 13 February 1993.
153. On the basis of this finding the Commission will now proceed to
examine the applicant's complaints under the various Articles of the
Convention.
D. As regards Articles 3, 5 para. 1 and 8 (Art. 3, 5-1, 8) of the
Convention and Article 1 of Protocol No. 1 (P1-1)
154. Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
155. The applicant complains that the deliberate targeting of him and
his family and the actions carried out against them to force them to
flee their homes constitutes inhuman and degrading statement.
156. Article 5 para. 1 (Art. 5-1) of the Convention, insofar as
relevant, reads as follows:
"1. Everyone has the right to liberty and security of person.
..."
157. The applicant submits that the harassment and intimidation by
agents of the State have resulted in the deprivation of his security
of life. In this respect he recalls that his brother, ibrahim, has
disappeared at, he believes, the hand of the State.
158. 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."
159. The applicant submits that the two alleged attacks on his house
represent separate violations of this provision. This violation is, in
his view, aggravated by the fact that the village guards and security
forces targeted the applicant and his family.
160. Article 1 of Protocol No. 1 (P1-1) reads as follows:
"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."
161. The applicant alleges that the infliction of serious damage on
his house and property represents an unjustifiable deprivation of his
right to possession of property as well as a violation of his right to
enjoyment of his property as guaranteed by Article 1 of Protocol No. 1
(P1-1). In addition, he argues that his rights under this provision are
violated and continue to be violated as the incidents perpetrated by
State forces amount to a constructive expulsion from his property.
162. The Commission recalls its finding above (para. 152) to the
effect that, on the basis of the written and oral evidence before the
Commission, it cannot be considered to have been established beyond
reasonable doubt that the events as alleged by the applicant occurred.
The Commission considers, therefore, that it has an insufficient
factual basis on which to reach a conclusion that there has been a
violation of Article 3, 5 or 8 (Art. 3, 5, 8) of the Convention or of
Article 1 of Protocol No. 1 (P1-1).
CONCLUSION
163. The Commission concludes, by 28 votes to 1, that there has been
no violation of Articles 3, 5 para. 1 and 8 (Art. 3, 5-1, 8) of the
Convention and Article 1 of Protocol No. 1 (P1-1).
E. As regards Articles 6 para. 1 and 13 (Art. 6-1, 13) of the
Convention
164. Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention,
insofar as relevant, read as follows:
Article 6 para. 1 (Art. 6-1)
"1. In the determination of his civil rights and obligations
..., 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."
165. The applicant submits that he is unable to obtain an effective
remedy for the violations he has suffered or to obtain a determination
of his civil rights. He contends that the prosecution system in South
East Turkey does not operate so as to investigate effectively
complaints concerning human rights abuses by agents of the State.
166. The Government, in their observations on the admissibility of the
application (see Annex I), submitted that the applicant had a number
of remedies at his disposal but that he had tried none of them.
167. The Commission considers that the claims which would have
required determination by a court in the present case included
compensation for damage to the applicant's house and property and that
the applicant's civil rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention were therefore at issue.
168. The Commission refers to its decision on admissibility in the
present case (see appendix to this Report). In that decision, the
Commission, in the context of Article 26 (Art. 26) of the Convention,
referred to its admissibility decision in the case of Akdivar and
others v. Turkey (No. 21893/93, dec. 19.10.94) in which it was
concluded that in the absence of clear examples that the remedies put
forward by the Government would be effective in the circumstances of
the case, the applicants were absolved from the obligation to pursue
them. The Commission found that in the present case the Government had
not provided any additional information which might lead the Commission
to depart from this conclusion.
169. The Commission's view in the context of Article 26 (Art. 26) was
taken in the face of certain domestic case-law referred to by the
Government indicating that there may be a channel of complaint through
the administrative courts which could award compensation to the
individual from the State on the basis of the latter's liability to
assume the protection of citizens from various social risks. However,
the Commission considers that this case-law is insufficient to
demonstrate that compensation claims in the emergency regions of
South-East Turkey for the destruction of homes allegedly perpetrated
by security forces have been successful.
170. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention requires effective access to a 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 claimed to be a direct
interference with property rights, as in the present case (cf. Eur.
Court H.R., de Geouffre de la Pradelle judgment of 16 December 1992,
Series A no. 253-B, p. 43, para. 34).
171. The Commission's decision on admissibility points to the undoubted
practical difficulties and inhibitions confronting persons like the
present applicant who complain of destruction of their homes and
property in South-East Turkey, where broad emergency powers and
immunities have been conferred on the Emergency Governors and their
subordinates. These difficulties are further demonstrated by the
evidence taken in the present case, which shows that no investigation
into the events was undertaken until after the Commission had
communicated the application to the Turkish Government and that the
subsequent investigation by successive prosecutors, in which there have
been two decisions of non-jurisdiction, cannot be considered to have
been conducted in an efficient way.
172. In these circumstances, the Commission is of the opinion that the
applicant did not have effective access to a tribunal that could have
determined his civil rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
173. In the present case, the applicant has not specified in what way
his complaints also relate to matters other than those which concern
his civil rights. For this reason, the Commission, having found a
violation of Article 6 para. 1 (Art. 6-1) of the Convention, is of the
opinion that no separate issue arises in regard to Article 13 (Art. 13)
of the Convention.
CONCLUSIONS
174. The Commission concludes, by 26 votes to 3, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
175. The Commission concludes, by 26 votes to 3, that no separate
issue arises in regard to Article 13 (Art. 13) of the Convention.
F. As regards Article 18 (Art. 18) of the Convention
176. Article 18 (Art. 18) of the Convention reads as follows:
"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."
177. The applicant claims that his experiences represented an
authorised practice by the State in breach of Article 18 (Art. 18) of
the Convention.
178. The Commission recalls its finding above (para. 152) to the
effect that it has not been established that the events as alleged by
the applicant occurred. Consequently, no question of restrictions
having been applied for improper purposes under Article 18 (Art. 18)
arises in regard to these events.
CONCLUSION
179. The Commission concludes, by 28 votes to 1, that there has been
no violation of Article 18 (Art. 18) of the Convention.
G. Recapitulation
180. The Commission concludes, by 28 votes to 1, that there has been
no violation of Articles 3, 5 para. 1 and 8 (Art. 3, 5-1, 8) of the
Convention and Article 1 of Protocol No. 1 (P1-1) (para. 163 above).
181. The Commission concludes, by 26 votes to 3, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 174 above).
182. The Commission concludes, by 26 votes to 3, that no separate
issue arises in regard to Article 13 (Art. 13) of the Convention (para.
175 above).
183. The Commission concludes, by 28 votes to 1, that there has been
no violation of Article 18 (Art. 18) of the Convention (para. 179
above).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF MRS. G.H. THUNE
AND MR. N. BRATZA
For substantially the same reasons as those set out in the
separate opinion of Mr. Bratza in Application No. 21893/93, Akdivar and
Others v. Turkey, we consider that there has been a violation of
Article 13 and not of Article 6 in the present case. We emphasise again
the particular importance which we attach to the role of Article 13 in
the context of the events in South-East Turkey for the reasons given
in the partly dissenting opinion of Mrs. Thune in Application No.
23178/94, Sükran Aydin v. Turkey.
In all other respects we agree with the conclusions and reasoning
of the majority of the Commission.